1 September 2017
James Hardie class action – initial win for leaky home owners
The team at Adina Thorn Lawyers has welcomed yesterday’s High Court decision that effectively means they can continue against all the seven James Hardie companies (including the Australian listed company) in the $250 million funded class action. The action alleges that the seven companies were involved in the production and sale of defective cladding.
This decision is only an initial decision, but Adina Thorn Lawyers says it is a positive first step for the approximately 1,000 owners that they act for. The owners have suffered massive repair costs or loss in value and many suffer health problems flowing from weathertighness issues with James Hardie cladding.
“The decision effectively allows the owners to continue against all of the James Hardie companies that the owners claim against, although the claim against the Australian listed company must be narrowed. Overall it is very encouraging for owners.”
The decision also highlights the complex structure of the James Hardie Group of companies. The parent company, listed in Australia and registered in Ireland, effectively remains in the action (but the claim must be narrowed).
“This case highlights the enormous difficulty for owners seeking justice but is very encouraging for them. It also highlights the great need for owners to group together when they dealing with large multinationals that are hugely resourced”.
16 November 2016
Monday start for Plaster Cladding Class Action against James Hardie
The High Court interlocutory applications for the $250 million plus plaster cladding class action against the James Hardie group of companies is set to get underway at 10am next Monday (21st November) in the Auckland High Court.
The hearing is one of the earliest in the proceedings and is set down for 2 - 3 days. The 365 plaintiffs will be represented by two experienced barristers: Mark O’Brien QC and Jenny Cooper.
The action against various James Hardie group companies has litigation funding. Led by Adina Thorn Lawyers, the action involves more than 1,000 owners of 365 buildings, including 29 large Body Corporate complexes.
Adina Thorn of Adina Thorn Lawyers, says the plaintiffs allege they have suffered financial losses and significant health issues arising from the use of non-performing cladding materials marketed as "Harditex", "Monotek" and "Titan Board."
Last month the High Court ruled that 15 new plaintiffs could join the action, a decision that had been contested by James Hardie.
Adina says: "The James Hardie group is a very sophisticated large organisation that has a long history of litigation, particularly with asbestos-related claims in Australia. That is why we are very fortunate that our claim is well-resourced."
The matters to be argued during the hearing include:
Summary Judgment Applications - Two of the seven James Hardie defendant companies have applied for early judgment in their favour (ie: to be removed from the claim). The plaintiffs have opposed these two applications.
Protest to Jurisdiction - The parent company of the James Hardie group, James Hardie Industries plc, has opposed the claim being heard in New Zealand. The plaintiffs are opposing the application.
Particulars - The defendants are seeking further details of the plaintiffs’ claims against them.
20 October 2016
Judge rules fifteen more claimants can join funded class action against James Hardie Group
Justice Downs yesterday ordered in the Auckland High Court that 15 later-joining claimants can become part of the fully-funded $250 million plus faulty cladding class action against various companies within the James Hardie Group. These 15 are funded by the same litigation funder: Harbour Litigation Funding.
The leaky buildings class action, being led by Adina Thorn Lawyers, now comprises more than 360 buildings and 1,000 property owners, all of whom are alleged to have suffered losses arising from the use of non-performing cladding materials marketed as "Harditex", "Monotek" and "Titan board".
The application for the additional claimants was opposed by the various James Hardie entities that are defending the claim.
Adina Thorn says the next intermediate stage in the overall proceedings is the first hearing of interlocutory applications which is set down for two or three days in the High Court on 21-23 November.
"James Hardie is a very sophisticated large organisation that has a long history of litigation, particularly with asbestos related claims.
"That is why we are very fortunate that our claim is well-resourced, thanks to backing of Harbour Litigation Funding of London, a very large and experienced organisation well versed in claims of this scale. Harbour is the largest litigation funder in Europe. It has funded a very well-resourced legal team that is backed by a large team of experts including building experts, a tax-law Professor of law, forensic accountants, a Marketing Professor, and overseas experts".
"Yesterday's decision is an encouraging step in the road to justice for our claimants, many of who have experienced severe health and financial damage as the result of James Hardie companies designing, manufacturing and knowingly selling faulty cladding materials. Many of the claimants are suffering from the terrible health effects of black mould".
2 August 2016
Supreme Court decision "extremely good news" for claimants in action against
The lawyer leading the $250 million plus class action against James Hardie companies says the unanimous Supreme Court decision rejecting the application of the 10-year limitation period on product liability claims is extremely good news for the owners of defective buildings in New Zealand.
Adina Thorn, of Adina Thorn Lawyers, says the 5-nil judgment in favour of the Ministry of Education in relation to its claim against Carter Holt for "Shadowclad" cladding, means that there is a green light on the bringing of building products and building material claims. These claims are not subject to the 10-year limitation period set out in the Building Act 1991/2004.
Adina says her legal team, headed by two Queen's Counsel, has watched for the outcome of the Ministry of Education/Carter Holt case, which now means that any "10 year" defence does not apply. This removes one big potential "roadblock" in claimants bringing actions against building manufacturers and suppliers.
"This judgment confirmed the view that these types of product liability claims are not claims relating to "building work. They are product liability claims"".
"It removes any 10 year defence under the Building Act 1991/2004".
The James Hardie class action (www.goodcladding.co.nz) is funded by the UK's largest litigation funder: Harbour Litigation Funding.
"This means the action is hugely resourced in terms of legal and building experts as Harbour has put its massive financial backing behind it.
"Our action involves probably 1,000 claimants and more than 300 buildings. These buildings suffer significant issues and the extensive health issues arising from these is a real concern. In particular the medical concerns due to "black mould" are particularly worrying for our claimants.
"We believe last week's decision will accelerate the legal processes required for us to be able to bring justice to our claimants who have in many instances had their equity in the properties destroyed through no fault of their own.
"Since the Supreme Court's decision last week we have had further approaches from owners who want to join our action. We are happy to consider the viability of registrations made to: www.goodcladding.co.nz."
Australian-listed manufacturer James Hardie has spent many years in court rooms defending its use of asbestos in Australia. The NZ Good Cladding action was filed in December last year and is likely to be one of the largest actions before the New Zealand Courts.
Adina says the funded class action she is leading means building owners can be part of a well-resourced claim without facing any out-of-pocket expenses, while gaining the opportunity to share in any compensation and damages that are secured by her team.
"Our claimants understand that Harbour Litigation Funding has a rigorous evaluation processes and they will only apply their resources to claims they believe will be successful."
The full details of the Carter Holt Harvey, Minister of Education decision can be found on www.courtsofnz.govt.nz
1 April 2016
We filed your Statement of Claim on 14 December 2015 in the High Court against seven different James Hardie companies. The claim comprises over 350 buildings. As some of those buildings are large apartment blocks, the number of individual owners would well exceed 1,000.
We received most of the Statements of Defence in February and, as predicted, the allegations are opposed. The proceeding is next before the Auckland High Court on Tuesday morning for a brief mention.
We wish to introduce our senior counsel legal team who bolster the in-house expertise at Adina Thorn Lawyers. The claim will be headed by one of New Zealand's top QC's, Dr James Famer QC. Dr Farmer also leads the Ministry of Education's product claim against Carter Holt Harvey (and James Hardie was previously a defendant to that claim). Also on the team is Mark O'Brien QC, a well-known commercial litigator, and leading commercial barrister Sandra Grant.
14 December 2015
Product Liability Claim filed against James Hardie Group of Companies in the High Court Today
14 December 2015
NZ$200 million plus product liability claim filed against James Hardie Group
The NZ$200 million plus product liability class action claim against the James Hardie Group of Companies for allegedly designing, manufacturing and selling defective cladding materials was filed at the High Court in Auckland today.
James Hardie has spent many years in Australian court rooms defending its sale of products containing asbestos. The Plaster Cladding class action is being funded by UK-based Harbour Litigation Funding, one of the world's largest funders of class actions. James Hardie also separately faces product liability class actions in Canada and the United States.
The action is comprised of more than 350 buildings or complexes. As some of the buildings are large apartment blocks, the number of individual units exceeds 1,000. Many suffer from significant weathertightness and mould issues. The owners allege they have suffered extensive losses, damages and health issues that are caused by faulty James Hardie materials.
The claim follows many years of research and legal work by a team led by Principal Adina Thorn of Adina Thorn Lawyers, a leading firm in the area of construction litigation.
"The size of this action just highlights the scale of this problem. We initially thought the action could be approximately NZ$100 million in value, but has become more than double."
"This exercise has already entailed a large amount of work with the process of evaluating all applicants to the class action, making legal and technical evaluations and reviews."
"The most satisfying aspect is to be able to bring before the court the case for those people who have in many instances had the equity in their properties destroyed through no fault of their own."
"This has become an inter-generational issue that has seen many people have their retirement plans destroyed by both financial and health issues. Leaky homes are expensive to fix, difficult to sell and many owners are suffocated by high borrowings. In some cases, sadly the problem is being passed down to the next generation."
"As this action is funded by a litigation funder, owners who have suffered losses can be part of a well-resourced claim without facing any out-of-pocket expenses, while gaining the opportunity to share in any compensation and damages that are awarded at the end of the process."
Adina says Harbour Litigation Funding have very rigorous evaluation processes for claims and would obviously only fund claims they believe are likely to be successful.
The action was filed at the Auckland High Court at 10am Monday 14th December.
11 November 2015
Update on progress in Plaster Cladding Class Action
At this stage we have undertaken significant work building the class and assembled a team of legal experts, including well-known Queen's Counsel, who will be leading this action on your behalf. Their work will include finalising the statement of claim that we are expecting to file in the High Court prior to Christmas.
We have significantly exceeded our NZ$100 million target value for the claim and the number of claimants is also substantial.
With the financial assistance of Harbour Litigation Funding our work to date has included consultations with leading international experts with a high degree of relevant experience. We know that a well-resourced team is required in order to mount a successful claim against a major corporate which has a substantial history in defending its products.
We are proud to help many owners who have suffered loss to be part of a large class action without facing any out-of-pocket expenses, while gaining the opportunity to share in damages that may ultimately be recovered.
19 August 2015
Plaster Cladding class action fully funded
In light of recent media reports on James Hardie, Adina Thorn of Adina Thorn Lawyers today confirmed that those owners of leaky homes participating in the Plaster Cladding class action managed by Adina Thorn Lawyers would face no out of pocket expenses as a result of the process.
She says that investment funds advised by one of the world's largest funders, UK-based Harbour Litigation Funders, will be meeting the litigation costs irrespective of the outcome in return for gaining a share of any damages secured.
"With their support we have been able to put together a strong legal team made up of solicitors, barristers, and QCs that we believe is essential to mount a successful action against such a large company, backed of course by a team of building industry experts.
"We have also had an amazing response since we announced the class action with more than 1500 building owners having registered their interest with us.
"Currently we are still in the process of finalising those who are eligible to participate, given the need to ensure the viability of individual claimants, which we expect to be the second-largest class action ever in New Zealand."
She says that while some notices have already been send out to claimants it is still not too late for people to register online at www.goodcladding.co.nz
12 August 2015
Funded Plaster Cladding Class Action Gaining Momentum
The first invitations to viable claimants to join the Plaster Cladding Class action were sent out today by Adina Thorn Lawyers, the firm that has initiated the $100 million plus claim against the James Hardie Group of companies that is being funded by one of the world's largest Litigation Funders, Harbour Litigation Funding.
Principal Adina Thorn says the invitations represent a massive step forward for the many owners within the viable class who have leaky homes or buildings clad in James Hardie products.
"We had an overwhelming number of registrations - over 1400 in fact. It has been a massive undertaking to assess those claimants who fall within the technical and legal parameters required for us to mount a successful claim."
"Many of the selected claimants were in the situation of not being able to sue anyone due to the 10-year longstop time period prescribed by the Building Act. This class action seeking compensation for product liability is not subject to this limit."
"Unfortunately not all of the 1400 people and groups who have registered to join the action will be eligible to do so and we will be progressively advising people of their situation in the coming few weeks."
She says her team has received many messages of support and encouragement from owners and other people across New Zealand.
"It seems that hardly anybody in New Zealand does not know someone personally who has been affected by the leaky buildings disaster."
Under the class action building owners stand to recover a percentage of any judgment or settlement and their claim which will be supported by top legal counsel and experts who will be paid for their work using funds provided by a fund managed by Harbour Litigation Funding. This means owners will have no out of pocket expenses.
27 July 2015
Court of Appeal decision a boost for Plaster Cladding class action
The recent Court of Appeal decision that claims by the Ministry of Education against cladding sheet and system manufacturer Carter Holt Harvey Ltd are not time-barred is welcome news to those home and building owners participating in the Plaster Cladding class action against plaster cladding manufacturers, says Auckland lawyer Adina Thorn.
"This decision confirms that claims against product manufacturers are not covered by the 10-year time bar that applies in respect of building work. This paves the way for claims against product manufacturers".
She says the Plaster Cladding class action is currently being put together from the more than 1,400 owners and body corporates who have registered their interest.
"We have had an overwhelming response to our call for registrations. The level of participation means we have been able to secure the high-quality legal and technical resources necessary to gain the backing of one of the world's leading funders of such actions, Harbour Litigation Funding.
"We expect that owners determined to have a viable claim in factual and legal terms will soon be invited to join the "class". The legal claim will then be progressed. The Court of Appeal's decision is very positive news for owners, both for this action and for future actions."
25 May 2015
Defective Cladding Class Action - Litigation Funding Confirmed
Adina Thorn of Adina Thorn Lawyers today announced that the dedicated investment funds advised by Harbour Litigation Funding Limited ("Harbour") has agreed in principle to provide funding to progress the claim against various manufacturers of defective plaster cladding installed in thousands of buildings across New Zealand. The damages to be claimed in the proposed class action are likely to exceed NZ$100M.
Adina Thorn says Harbour's agreement to fund the proposed action means that there will be no out-of-pocket cost to participants in the action. "Harbour only invests in cases it believes have strong prospects of success so we are encouraged that they have decided to fund this class action."
Over 1,200 building owners have already registered for the proposed class action via the website www.goodcladding.co.nz. Registrations have been received from around the world including New Zealand, Australia and the UK. Adina said she has been surprised by the number of registrations; "We have had an overwhelming response from ‘leaky building' owners across New Zealand. Many have lost everything - some have 100% mortgages or cannot increase their lending - most can't afford to fix the problem. Thousands of people and families have been left with no choice but to live in leaky, mouldy homes that can pose a significant health hazard."
Further registrations are still sought. Adina encourages other owners of plaster clad buildings to register via the website www.goodcladding.co.nz. Adina explains broadly that the next phase will involve detailed evaluations of claims. Adina has noted that registrations for single apartments or houses managed by a Body Corporate are difficult to consider. In these cases it is important that the Body Corporate Manager register the entire building.
9 March 2015
Registrations called for NZ$100 million plus cladding class action
Owners of buildings with plaster cladding in New Zealand are now being asked to register their interest for a proposed class action against manufacturers seeking damages well in excess of NZ$100 million.
Adina Thorn Lawyers is expecting to launch the claim in association with international legal and funding experts with proven track records in successfully running similar high value class actions.
"This is about buildings with plaster cladding. It's not only about homes - it's all buildings - homes, commercial buildings, hospitals etc. All buildings need to have proper and safe cladding," says the firm's Principal
"This claim comes about as a result of the many approaches I have received from the owners of buildings constructed using Harditex, Monotek, Titan board and various different polystyrene claddings".
"All owners of plaster clad buildings should now register their interest in being part of this action. There's no cost involved in registering and all the legal costs during the legal process will be covered by a litigation funder. There's no time limit in joining the action - so a building of any age can join the action. Owners previously believed there was a 10 year time limit, but that is no longer the case, anyone can join this action".
Registration will enable the team of experts Adina Thorn Associates has assembled to finalise the scale of the claim, and to supplement the already impressive levels of expert evidence that have been assembled.
"It is important that those wishing to be part of this initiative register on our website www.goodcladding.co.nz. We are expecting a significant response and we will be giving priority to those who register early."
Those who register will have the opportunity to become part of a funded class action to receive compensation in respect of faulty products used in the construction of buildings they own and will receive detailed updates on the progress of the claim.
"We expect the level of the final damages claim to be at least NZ$100 million, but this figure could rise significantly if we receive the level of response from claimants/owners we are expecting".