Leaky Homes Exposed 

Court Cases Aren’t Always Fair

Anyone who has sat through a complex court case would know that what is fair and reasonable is not always what the court decides.  Judge Whata has to adjudicate on fine points of law, taking into account the precedents from many other court cases before arriving at his decision, which no doubt will just end up going to the court of appeal anyway.

We could get very technical today and talk about the defective and badly written standards, dodgy BRANZ Appraisals, and the other culpable parties that played a part in the leaky building scandal – and we will certainly do that in other articles.  Here though, I am making a simple accusation that James Hardie can’t defend against or hide from.  There is no excuse, and they should be held accountable for this failure.

The Court Decision that James Hardie Would Rather Hide Away

James Hardie's lawyers argue that construction defects rather than product defects led to the plaintiffs’ homes rotting. 

The same argument was played out in the USA in the 2002 case ‘Bay Point Condominium vs RML Corp’. Here the judgement included these statements:

“From the evidence presented, it is clear to this court that Dryvit’s Outsulation EIFS system was defective when purchased by RML. Dryvit failed to plan and design its Outsulation system for the occasion of foreseeable water intrusion behind the cladding, resulting from points of penetration in the Outsulation, regardless of the impact of the other obvious construction defects.  This Court finds that the Outsulation system would be defective even if installed completely according to specifications details and instructions due to its failure to accommodate inevitable and foreseeable water intrusion.”

So, in what way did Dryvit not allow for inevitable and foreseeable water intrusion?

“This incongruence between the flashings and the Outsulation resulted in a foreseeable water intrusion into the Spyglass structures and as a consequence water was trapped behind the Outsulation, resulting in structural damage to the buildings. If Outsulation contained an evacuation or redirection system, the foreseeable water intrusion would be not have been trapped behind the EIFS cladding at Spyglass and would not have caused the Spyglass units structural damage”.

So in a nutshell, there was no cavity behind the Outsulation to drain away the foreseeable leaks, the water was trapped, and the buildings were damaged. Sound familiar? 

And bear in mind that an absorbent cladding system like Harditex has far more ways of allowing moisture intrusion than an EIFS (polystyrene) system like Dryvit.

And James Hardie can't pretend that they didn't know about this court case.  Documents discovered under the Official Information Act show that Greg O'Sullivan, of Prendos, warned Jame Hardie in December 1999 that the cladding manufacturer was being sued and that the judge had allowed the case to exclude the actual contractors and installers.

Fact - All Houses Leak and This Has Always Been Known

It is 100% foreseeable, even to be expected,  that somewhere, sometime, moisture will get behind the cladding system.

There are just so many ways for water to get into your house, such as:

• defective flashings,
• cracks,
• sealants defective or not being maintained,
• wicking up the absorbent Harditex because the cladding is in or close to the ground,
• wicking into the absorbent Harditex around window flashings and control joints,
• windows leaking (and nearly all of them do during their lifetime),
• moisture breaching the Harditex sheet jointing material,
• sun warming up damp Harditex forcing evaporating moisture behind the Harditex into the framing,
• failure to install ‘ponding boards’ on low sloped roofing systems which allows water in behind the Harditex,
• internal gutters and decks leaking or overflowing into the framing behind the Harditex,
• scuppers, rain heads, pipes and other penetrations that penetrate the Harditex such that if they fail moisture gets in behind the Harditex
• Taylor or Klass type gutters with the internal lip lower than the external lip resulting in overflows into the walls and wets the framing behind the Harditex. 

  Harditex that was badly installed and badly maintained results in leaks and damaged timber - this was foreseeable by James Hardie

When moisture breaches the Harditex cladding system, the framing gets wet.  When the cladding is nailed hard against the framing, as per Harditex instructions, the moisture cannot escape, it accumulates, and the wood eventually goes rotten.  When the timber involved is also untreated and kiln dried (again in accordance with JH Technical Literature), it rots faster.

It is neither acceptable nor responsible for James Hardie to market and sell a product, which does not allow for inevitable and foreseeable water intrusion. Knowing full well that when moisture does intrude, this will cause damage and premature failure of the framing – a part of the building required by law to have a fifty-year plus durability?

How Does Harditex Manage Foreseeable Moisture Intrusion?

James Hardie managed the potential for moisture intrusion by ignoring it.  If we don't mention it, it won't happen. It's not our problem.  We just sell the product. You figure it out, we just make the stuff.

After all, they funded a BRANZ Appraisal which said that their product was fine – even though BRANZ did no testing until 2002 – and then it failed and was subsequently withdrawn from the market in 2005.

If the house is built perfectly, no component fails, and maintenance is always done 100%, then – the product is fit for purpose. Yeah right!  That argument didn’t hold up in Bay Point Condominium vs RML Corp and shouldn’t hold up in this case.

Leaks were being reported to James Hardie by at least the mid-1990’s so they would foresee leaks in future houses and should have warned the market, withdrawn their product, changed their installation instructions, asked BRANZ to withdraw the Appraisal, required a cavity and treated timber…… something, anything that would address the known problems.  Instead, they continued to market a product that wasn't fit for purpose, with defective installation instructions, knowing that a high proportion of houses would leak, and knowing that when they leaked, they would decay.  

If Judge Whata knows about this court case, all of James Hardie's lawyer's arguments about bad construction and not following instructions basically go out the window and he must find that they are to blame.  

In the second part of this story, we will show why James Hardie should have foreseen that leaks would occur and what the Building Act has to say.

If you were in the industry at the time and have anything to add, we would love to hear from you.