Fairbrother Russell: Weathertight Homes Resolution Services(Remedies) Amendment Bill — First Reading 
Fairbrother Russell: Weathertight Homes Resolution Services(Remedies) Amendment Bill — First Reading 
[Volume:639;Page:9709] 
RUSSELL FAIRBROTHER (Labour) 
: 
 The last time that man appeared before a High Court he was found guilty of contempt—contempt of court. What is more the High Court did not believe his evidence which is even worse. If a person is not believed in court it means that he or she has given wrong evidence on oath. When it is evidence about one’s own actions one cannot be mistaken one must be deliberately misleading the court. That was the finding on that man the last time he was before the High Court. 
His lack of knowledge on this legislation is abysmal and that should be taken into account when we consider the argument. He said to the Minister: “If you do not like the decision of Justice Stevens in the Hartley case you can appeal it.” Hang on whereabouts in the Hartley case is the Minister a party? Whereabouts in the Hartley case has the Minister a standing to appeal? He has no standing to appeal. The only ability the Minister has is to bring the matter to Parliament to amend the legislation. Of course Nick Smith would not know that. His role in the High Court was as a defendant—an unfortunate hapless defendant. 
That last speaker criticised this Government for what was a failure of the Opposition to do its lawful duty. This House has an Opposition the Queen’s loyal Opposition. The role of the Opposition is to examine Government initiatives and point out defects. Yet what did this Opposition do in respect of the original bill that went through in December? It voted for it. Did the loyal Opposition say it could not vote for it because there was a defect in it? No; it voted for it. 
Well what is the defect? It is not the case that claimants cannot currently claim general damages. The Hartley decision says that claimants who bring a claim before the Weathertight Homes Tribunal cannot claim general damages. Claimants have to start a fresh action in the general jurisdiction of the court to claim general damages. Nick Smith is arguing that claimants should have to run the gauntlet of two courts; they should have to get their facts established at the Weathertight Homes Tribunal then go back to the District Court or the High Court to claim their general damages. That is an argument for running up the costs both to the Government—which he has so savagely and erroneously criticised—and to the parties. Nick Smith does not want these claims to be successful because his builder mates are telling him that. We know that because there is a bill before the Parliament right now whereby he protects those builder mates. 
Hon Dr Nick Smith 
: I raise a point of order Mr Speaker. The member has asserted in his speech that I am being influenced by builder mates in the views I have expressed in this House. The Standing Orders are very clear; a member cannot assert an improper motive. I am proud to have a large number of mates in the building industry but the assertion that I am somehow improperly motivated by those friendships is quite against the Standing Orders. 
RUSSELL FAIRBROTHER 
: Speaking to the point of order I said that his builder mates have told him that. One would hope he would listen to his lobby group. One would hope he would at least listen to somebody—at least to his lobby group. 
Eric Roy 
: Mr Deputy Speaker I quite clearly heard the member say that Dr Smith has been influenced by his builder mates and that is asserting an improper motive. 
Mr DEPUTY SPEAKER 
: That being the case just a withdrawal will suffice please. 
RUSSELL FAIRBROTHER 
: I withdraw but I want to say that if this member had listened to the lobby groups he would know that the best course he could take on this legislation is to say that his party will help the Minister to get it reported back by 18 June because this is nothing but a good amendment. 
It is a good amendment because it merely clarifies the rights of claimants who have been put in the invidious position of owning a house that was purchased or built in good faith then later on the defects show up and the ability to claim damages is now an issue. It has not been an issue for long I have to say. The District Court has consistently found that general damages can be awarded. The problem started when a retired High Court judge the honourable Sir Robert Smellie postulated in an article in the second-rate legal journal  
New Zealand Lawyer 
 that there may be the chance that general damages are not claimable in an action before the Weathertight Homes Tribunal. That argument was taken apart by Judge McElrea in the Waitakere City Council case; he carefully disassembled the argument advanced by Sir Robert Smellie by saying it was not consistent with the Act. He pointed out that many jurisdictions not the courts award general damages. 
And what are general damages? This point was totally omitted by the last speaker. General damages are the automatic right to compensation and they do not need to be pleaded in a case. The High Court has said that one can claim for special damages only and the general right to be returned to the position one was in by way of monetary compensation is limited. It is limited by an article written by a retired High Court judge in a second-class journal the  
New Zealand Lawyer 
; the article has influenced Justice Stevens by the strength of its reasoning. Justice Stevens has set a precedent in the High Court that remains until another High Court judge chooses to deviate from it or a poor litigant a house owner takes it by way of appeal. 
The most appropriate action for a responsible Minister to take is to consult quickly with the groups affected—principally the Leaky Homes Action Group—and to bring in a simple bill that has five operative clauses. It is not a lengthy bill and it merely restores what that party opposite believed was the case in December when it voted to support the original bill. It is not a case for National members to grandstand in a rhetorical abusive way at the expense of the struggling anxious and stressed homeowners who even if they get a full hearing before the Weathertight Homes Tribunal will always end up as losers because there is no adequate monetary compensation for the stress of having one’s dream home start to crumble around one. 
This bill is urgent and should be passed with alacrity and in good conscience by both parties. National supported the legislation passed in December when it failed to see the defect; no reasonable reading of the bill in December revealed this defect. We now have one High Court decision which stands until it is challenged. The cost of challenging is very expensive. The High Court decision says that if one wants general damages one has to commence a separate proceeding in another court. That is ludicrously onerous and adds to the cost to the Government because the Government pays for court costs as it pays for the resolution service. So the running of the High Court or the District Court becomes clogged up if the court has to consider general damages separately. 
General damages are a longstanding remedy in law a longstanding right and every claimant should be entitled to them. Every claimant under the speedy service of the Weathertight Homes Tribunal should be able to expect them. This judgment tells us that we need practical people hearing these disputes not black-letter lawyers. We have practical people in the Weathertight Homes Tribunal who give good and prompt decisions and assist those people who are troubled by the defects of the Building Act. It is lamentable that the Opposition chooses to make politics out of this issue.