It’s not just another leaky home tale: there’s a $500,000 lawsuit against a builder, a building inspector, and the New Zealand boss of the world’s biggest real estate chain. Three senior real estate agents before a disciplinary tribunal. A mysterious ‘secret’ witness. And a very upset pensioner who lost her life savings.
In the first two parts of The Big Leak, we learned how Jean Warburton bought Remax boss Corrina Mansell’s Hamilton rental, only to find out it was plagued with leaks. Warburton's lawyer found that, all along, there had been a report that warned of the problems with the house at 2B Edgecumbe St. But Mansell said she had given that report to the agents selling the house — Andrew Gibson and Cary Ralph. They said that wasn’t true. But then along came an anonymous tipster making big allegations.
While the wheels of court action slowly began to turn, there was another surprising development. An anonymous informant tipped off the Real Estate Authority - the governing body of all agents - about the Edgecumbe St case.
Jean Warburton never actually complained to the REA, and indeed, still hasn’t. “Somebody else did, and they won’t tell me who it is,” she says. “I’ve done everything to find out who it was and they will not tell me.”
But the tip-off was enough for the REA to assign senior investigator Wayne Radovich to look into the sale to see if any of the agents involved had breached their professional standards.
What seems to have particularly spiked Radovich’s interest is a further conversation with the anonymous tipster, who claimed Gibson and the building inspector, Bankier, were old mates, and had colluded to produce a dodgy report to get the house sold.
Both men strongly deny that - and say they’ve only met a couple of times. “I doubt I would recognise him on the street,” says Gibson. He says phone records show he didn’t speak to Bankier at all at the time, and he had no motive to deliver a dodgy report: "You could look through who has a gripe with a real estate company - unrequited purchasers, upset sellers. We’ve had some ideas, but who would gain anything from this?”
Bankier doesn’t want to talk much, but says: “I didn’t know the guy (Gibson). I didn’t have any previous relationship [with him] at all… I don’t know why [that’s been said] and what agenda there was to prove it, unless it was concocted by the plaintiff… I don’t understand.”
Gibson has asked the REA to tell him who the witness is. They’ve refused. He’s also complained to the Privacy Commissioner, the Ombudsman and the Ministry of Justice, with no success. He could have been found guilty by the REA without knowing the witness’ identity or being able to cross-examine them.
"Remember the days when the Nazis had secret informants and dobbed people in and no one knew who the hell they were?” he says angrily. “The Inquisition, North Korea, all those lovely places? And I didn't think this happened in New Zealand."
Auckland University law professor Bill Hodge says, with the proviso of not knowing all the detail of the case, the secret witness raises questions of procedural fairness and usually only children would get their anonymity preserved. “The tribunal has a duty to follow natural justice in its disciplinary processes. There is pretty solid law requiring investigators and tribunals to make known the identity of their witnesses and informants.”
Jean Warburton’s lawyer Michael Talbot also wants to know who the witness is and says his client has a right to know. He says the informant made an allegation that “we cannot find any evidence consistent with … in a civil court, we have to make allegations based on evidence, and we can’t make that allegation and we haven’t made it.”
The REA’s chief executive, Kevin Lampen-Smith, did not want to go into detail but admitted the secret witness arrangement “is unusual, and there is a reason for it, and that’s probably all that can be said … it is unusual but legal, and it is appropriate in certain circumstances.”
In Radovich’s report, Gibson said he would never have misled Warburton. He told Radovich: “We relied upon the vendor, who travels the country training REMAX staff about disclosure and transparency, to be honest with us.”
Mansell filed a complaint to Radovich against Gibson and Ralph, saying they had breached the rules, because she had given them the INRED report and only learned they hadn’t handed it on during the civil process.
Radovich completed his investigation in April and it was sent to the REA’s Complaints Assessment Committee - which makes rulings ‘on the papers’ without speaking to witnesses. That committee held its hearing in May - but kept its silence.
The Remax Waikato office was resigned to being found at fault for something, despite being certain there’s nothing they could have done differently. Patterson-Gray says: “I just don’t have any faith [in them].”
But then, on a Friday afternoon, July 27, the CAC handed down its decision, clearing Ralph and Gibson entirely, saying it would continue to investigate Mansell, and did not believe she had handed over the INRED report. It seemed clear - the CAC blamed Corrina Mansell.
“This nightmare had been going on for over two years and there seemed no end,” says Gibson, who feels vindicated by the outcome. But he also feels angry that Remax remains in Mansell’s corner “when clearly there are deep suspicions about her honesty and integrity.”
Ralph, drinking a celebratory whisky that night, said: “It’s been 18 months of stress hanging over us. You don’t know where your career is going to end up or what people think of you when you’ve actually done nothing wrong.”
His relief was that the CAC decision had arrived just before this story was published, not just after. He’d been dreading it would tarnish his reputation. “My concern was people would read it and everyone reads Stuff, and say ‘I thought Cary was a good guy, maybe he’s not so good’,” he says. “But there’s not a single thing they’ve had a question mark against us. It shows we weren’t telling you BS.”
But the court case, of course, remains. “It’s certainly going to make her look silly in court, suing us now.”
But like everything in this story, even this episode wasn’t straightforward.
The CAC report says Gibson and Ralph warned Warburton about the original purchasers, the Dean family, withdrawing after hearing those leak rumours. But Wayne Radovich’s report says they didn’t. Warburton says they didn’t. Gibson and Ralph say they couldn’t, but they dropped some hints anyway. “Even I am not that silly as to forge ahead and buy a house with those sort of rumours swirling around,” says Warburton.
Initially both Jean Warburton and Andrew Gibson told Stuff they were firm friends.
“They’ve [the Gibsons] been a tower of strength for me over the years, fabulous friends… they’ve been lovely people to me,” Warburton said. Their relationship was always a key element of Gibson’s argument: “Jean is a good friend, I would never have done this to her.”
Warburton, though, was always disappointed Gibson didn’t tell her about the original buyer’s withdrawal, and believed he regretted it. Once it became clear that fact was in dispute, cracks began to appear in the relationship.
Warburton felt Gibson and Ralph were no longer telling her the truth. Gibson decided that perhaps she was actually the secret witness all along - or at least, had set someone else up to be. “The number of possible candidates has been dwindling… however the same name keeps cropping up time and again,” Gibson says. He offered various reasons Warburton could be the secret witness, but chiefly: “Because Jean has constantly declared her love and affection for us [Cary and himself] we thought that she would be pleased for us that we have been exonerated by the decision. However the opposite has occurred.”
Jean Warburton was not surprised. “I thought this might happen,” she says. “I am not the secret witness and I swear I have no idea who it is. I didn’t even know the procedure for laying a complaint. He has always been obsessed with finding out who did.”
Remax office in Auckland
Remax office in Auckland
Rumours circulate and grow in small towns, says Andrew Gibson. Since people began whispering about Edgecumbe St, he’s closed his Hamilton and Te Awamutu branches, and business is “shaky” at his Thames office. He’s lost 10 agents from a staff of 17 and can’t find replacements. “Prior to this event, this company was doing very, very well,” he says mournfully.
Gibson, Ralph and Patterson-Gray now have nothing to do with Mansell, despite all working for the same company, and say their business is being left to wither. Early in the court process, Patterson-Gray received an email from Mansell saying: “I feel very sorry from Andrew because he has done nothing wrong.”
Clearly, those sentiments had changed when Mansell issued a counter-complaint with the REA against Ralph and Gibson and based her defence in court on blaming the pair.
A mark of how bad relations got came with the death of Mansell’s father-in-law, Gary Blair. He worked for Gibson as his Thames branch manager. When Blair died last year, Mansell sold his house with the rival Bayley’s office.
Strangely, though, Mansell sent a Facebook friend request to Ralph midway through this whole affair. He hasn’t accepted. Ralph won a trophy at last year’s Remax awards. He didn’t go, so it was posted to him.
Michael Davoren, Remax’s Brisbane-based managing director for Australia and New Zealand, says the company had “discussions” with both Mansell and Gibson, but won’t make any personnel decisions until after the case concludes.
“It’s very difficult for us to make a judgment call as to who is right and who is wrong, so we won’t be making any major move towards the current relationships that we have,” he says.
That leaves Remax New Zealand in a strange limbo. Corrina Mansell is still the general manager, but the Waikato district now reports into the finance manager, Chris Chapman. Davoren says he can’t comment any further on the dispute, except to say: “I do know there are many people involved in this trying very hard to resolve it… I am just very much hoping it has a fairytale ending.”
That seems unlikely.
Michael Talbot, Jean Warburton’s lawyer, having instructed her not to talk to the media, now finds himself in the unusual position of talking to the media himself, because “he follows client instructions”.
He’s a leaky home specialist, but says this case is particularly unusual.
But the facts are, he says, that the house is leaky, so someone is at fault. A 10-year statute of limitations means they can’t pursue the original builder, but they’ve got a “reasonable confidence” of finding Bankier, Mansell and Carson all negligent in their own ways.
Bankier, he says, breached a duty of care in preparing his report. That report is “surprising” given every expert since has found the house was a mess. “We’ve clearly made allegations that are on the public record that provide a large list of indicia of a leaky home that a competent report writer should have spotted - and that’s without invasive testing.”
Tony Bankier also wants to consult his lawyer before talking to Stuff. Eventually, he says: “I did my job. This has cost me business. I got paid $400 to do a report. Everyone else in this situation made thousands. What would be a fair remuneration for me [to give to Warburton]? The report cost $400, I’ve got $20,000 of legal fees, so it has not worked out for me at all. I am fighting it because I’ve done nothing wrong.”
Carson is included because of his work on the reclad and the deck. The work doesn’t appear to ever have been consented. Talbot will argue if his work had been done properly and signed off, the house would’ve been fixed.
Initially, Matt Carson sounds keen to speak, saying, “I am stuck in the middle of it to be honest. I’d be more than happy to tell you what I’ve done - I am royally stuck in it for a very minimal part that I’ve played in it.” But after consulting his lawyer, he limits himself to a statement, saying: “We deny any liability. We did not build or design the house. We intend on following the judicial process.” In his court papers, he argues that he wasn’t asked to repair all the faults found in the INRED report, just some of them, which he did.
And as for Mansell, says Talbot, she should have properly disclosed that the house might leak, and the law is clear - she is responsible for anything her agents did and it’s up to her to separately prove it was their fault not hers. They say she misrepresented the house.
Mansell’s defence is that she disclosed everything, and Gibson and Ralph have failed in their duties, Warburton contributed by failing to perform due diligence on the purchase and they reserve the right to get their own weathertightness reports done. Mansell has not acknowledged a series of phone calls, text messages and emails asking her for comment for this story.
Given one attempt at mediation has failed, the dispute seems certain to end in court. The trial is due to be timetabled for some time after November - which means it might be 2019 before it’s actually settled.
Warburton decided to talk to Stuff, after much deliberation, because she’s stressed, angry, and fed up with the delays. “Right now, I can’t be any worse off - I am exactly where I was two years ago, and no matter what, nobody can take this heap of s... away from me. When it’s sold, it will be sold as a very leaky house on a very nice piece of land.”
Gibson, who is partial to a theatrical turn of phrase, considers the whole mess, and concludes: “This could be a soap opera. This could be something off Shortland St. But people would say ‘how ridiculous is that?’”
Back at Edgecumbe St, in the empty lounge room, Jean Warburton says: “I would sell it today [if I could].” She laughs. “Would you like to buy it?”