The ACT Government's $1 billion buyback and demolition of the 1021 Mr Fluffy homes in Canberra will not ward off legal action, with some affected families now considering suing not only the Government, but conveyancing lawyers, real-estate agents, former home owners, builders and others.
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Craig Painter, a senior associate with Snedden Hall and Gallop, represents a Forrest family who lodged a $2.46 million action in the Supreme Court in September. This week, he confirmed likely action on behalf of other families in the asbestos-contaminated homes.
Mr Painter said if owners were told there was an asbestos problem when they bought their homes, or if they had had the loose-fill asbestos insulation installed themselves, they probably wouldn't have a claim.
But most people weren't in that situation. Some had bought their homes without being alerted by conveyancing lawyers. Real estate agents had indicated there was nothing wrong with the properties, selling them as a "renovator's delight", for example, when they couldn't be safely renovated.
Mr Painter said legal actions would vary depending on the circumstances of each home owner, but all went to what professionals knew or ought to have known about the homes. It wasn't just the Government that had wronged owners. Some families would have cases also against builders who renovated homes, certifiers who signed off on work, and the planning department which maintained building files.
Mr Painter said the Government's offer to buy back the houses was not fair on the terms it was offered at the moment, and he urged owners to wait for the detailed offer before considering whether to accept it. The offer assessed the value of homes at October 28, 2014, when the buyback was announced, but he didn't believe owners would get the money till later in 2015, by which time the valuations would be out of date. They would also be trying to buy a replacement home in a market inflated by the sudden entry of 1000 buyers looking for homes.
But a spokesman for Chief Minister Katy Gallagher said she expected to be able to start paying out homeowners by the end of the year. An appropriation Bill would be introduced in November and possibly passed the same week, and once a Bill had also passed federal parliament, the Government could begin buying houses.
The ACT Government will require owners to indemnify it against claims for economic loss when they sign up to the deal, but the extent of the indemnity is not clear. Actions have a six-year statute of limitations which might prevent some families from taking legal action if they bought or renovated more than six years ago - although Mr Painter is exploring whether owners could argue that provisions covering defects - in which the limitation period doesn't begin until a defect manifests itself - could be applied in Fluffy cases.
Maurice Blackburn's asbestos expert, Theodora Ahilas, said the detail of the government's offer was still unclear, leaving owners distressed and unsure what to do.
"What we really need to know now is how that will affect each individual homeowner, one glove doesn't fit all," she said.
The firm is considering individual and group actions, but Ms Ahilas said if owners were able to negotiate a position they were comfortable with and signed an indemnity that would be the end of the story.
Friends of the Fluffy Owners and Residents' Action Group spokeswoman Brianna Heseltine said the six-year statute of limitations prevented the Fluffy owners taking a class action against the Commonwealth, given the removal program took place more than 20 years ago.