The High Court has struck out a family’s personal injury claim against the National House Building Guarantee Company, which trades as HomeBond, ruling that the claim was barred by the terms of its written warranty.
In a judgment delivered on 22 July 2016, Ms Justice Baker said the proceedings against HomeBond were bound to fail. She exercised the court’s inherent jurisdiction to strike out that part of the case. The motion did not determine the claims against the other three defendants.
The proceedings arose from the purchase of a newly built family home in Mallow, Co Cork. The parents said serious defects, including defective foundations that caused significant damp, led the family to leave the house and suffer personal injuries. The judgment records that substantial structural repairs, possibly including demolition and reconstruction, would be required. Those matters were background to the motion, not findings after a trial of the personal injury claim.
The family alleged that HomeBond had failed to provide cover under its warranty and had negligently inspected or certified the foundations and roof, including by issuing a final completion notice. HomeBond sought to have the claim against it dismissed, relying on the warranty’s terms.
The judge noted that the warranty excluded liability for claims relating to acts or omissions concerning the dwelling, including negligence in inspecting or failing to inspect it and in investigating complaints. The final notice also disclaimed liability for inspection and related matters. The plaintiffs did not argue that the limitation clause did not apply to them, the judgment said.
Justice Baker concluded that the rights between the family and HomeBond were governed by the written agreement, which expressly excluded the negligence claim as pleaded. She also found that the pleadings did not allege a separate representation, special relationship or additional duty that could support a claim outside the contract. The allegation that HomeBond had inspected the foundations did not change the result because the claim had not been pleaded as arising from an additional undertaking.
The judge rejected the argument that the agreement had to be signed by both parents to be effective, and said the cited earlier case did not establish that requirement. She also rejected the submission that the personal injury proceedings should continue because related contract proceedings were already pending, noting the cost and time of defending the personal injury claim.
The order struck out the plaintiffs’ claim against HomeBond alone on the basis that it was bound to fail. The judgment did not rule on the underlying defects or personal injury allegations at trial.