Council liability for leaky buildings in New Zealand: An analysis of McNamara v Auckland City Council

This paper discusses the Supreme Court decision in McNamara v Auckland City Council. As McNamara is on the fringes of the existing body of law, the Supreme Court had a difficult decision on whether to extend liability, in line with the general development of this area of law or to restrict liability and reverse the earlier trends. William Young, McGrath and Blanchard JJ in the majority held that the Auckland City Council was not in a proximate relationship. The Council owed no duty of care to inspect the procedural validity of the building certificates or the validity of the code compliance certificate in the LIM report. Joined by Tipping J, the majority further concluded the s50(3) good faith defence would also prevail in both situations. Elias CJ dissented on all issues. This paper analyses the decisions and available facts against the accepted negligence framework and analyses policy issues concluding that the approach of Elias CJ is to be preferred to harmonise defective building law.