In Cridge v Studorp Limited [2017] NZSC 178 the Court of Appeal upheld a decision by Ellis J allowing representative proceedings to be brought by several owners of leaky homes against Studorp Ltd and James Hardie New Zealand.

The test for a representative action is whether the parties to be represented have the same interest in the proceeding as the named parties.  The Court of Appeal upheld the decision of Ellis J, and concluded that there was a common factual matrix between the members of the proposed class, and that minor variables could be accommodated by the creation of sub-classes.  The Court said that to require the same evidence to be given in respect of each claim would be a wasteful duplication.

The Court of Appeal also considered a cross-appeal by the representative owners in relation to the length of time allowed under the opt-in order for qualifying members to opt in.  Ellis J determined the length of the opt-in period by reference to the periods of time between filing the proceedings and the date the limitation period expired.  The Court of Appeal held that the purpose of an opt-in period is not to enforce the limitation period, but rather to reduce the original class to those who take the positive step of opting in.  The Court held that the length of time should be determined by considering what period of time is reasonable in all the circumstances to allow potential class members to be made aware of the proceeding, and to consider their options after making any necessary investigations and taking advice.

Given the Court of Appeal's conclusions on the above issues, it was not necessary for the Court to determine related issues about when the time stopped running under the Limitation Act for the representative owners.  Nonetheless, it held that a proceeding is brought for limitation purposes when the statement of claim is filed, and that this must logically apply whenever a proceeding is commenced as a representative proceeding, regardless of whether it is judicially allowed to continue on that basis or not.  Once a proceeding is filed by representative owners within a limitation period, everyone else on whose behalf they purport to sue will not be time barred.

See the Court's decision here.