Aldridge v Boe - [2012] NZHC 277

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-7805

NZHC [2012] 277

UNDER THE WEATHERTIGHT HOMES RESOLUTION SERVICES ACT 2006

BETWEEN STEPHEN LESLIE ALDRIDGE, KATHLEEN MARGARET ALDRIDGE AND CA TRUSTEES LIMITED AS TRUSTEES OF THE SL AND KM ALDRIDGE FAMILY TRUST Appellants

ANDJOHN WILLIAM BOE, ROBYN JEAN BOE, KAY LYNETTE PEEBLES PERSONALLY AND AS TRUSTEES OF THE JOHN BOE FAMILY TRUST AND THE ROBYN BOE FAMILY TRUST
First Respondents

ANDTHE HAMILTON CITY COUNCIL Second Respondents

ANDMICHAEL SWART Third Respondent

ANDKERRY MURPHY Fourth Respondent

Hearing: 14, 15, 16 and 17 June 2011

Counsel: P J Wright for Appellants
P Grimshaw and B Easton for First Respondents D Heaney and C Goode for Second Respondents M Talbot for Third Respondent
P Napier and N Pye for Fourth Respondent

Judgment: 10 January 2012 at 3:00 PM

JUDGMENT OF POTTER J

ALDRIDGE V BOE HC AK CIV-2010-404-7805 10 January 2012

In accordance with r 11.5 High Court Rules
I direct the Registrar to endorse this judgment with a delivery time of 3 p.m. on 10 January 2012.

Solicitors: McDonald Law, Auckland – Stephen@mcdonaldlaw.co.nz Grimshaw &Co,Auckland – paul.grimshaw@grimshaw.co.nz and bryan.easton@grimshaw.co.nz
Heaney & Co, Auckland – crg@heaneyco.com
Keegan Alexander, Auckland – pnapier@keegan.co.nz

Copy to: M Talbot, Auckland – Michael@talbotlaw.co.nz
P J Wright, Auckland – pwright@shortlandchambers.co.nz
Table of Contents

Introduction [1] Parties [4] Factual background [10] Decision of Tribunal [55]
Responsibility of the first respondents, Mr and Mrs Boe [59]

(i)       Misrepresentation  [60] (ii)      Vendor warranty  [69] (iii)     Tort  [76]
Volenti non fit injuria  [89]
Lack of causation defence  [92]

The appeal and cross appeal [96] Approach on appeal [105] The Aldridges‘ knowledge [107] Volenti non fit injuria (Voluntary assumption of risk)
Issue [110] Submissions [111] Coughlan v Abernethy [123] Discussion [134] Conclusion [137]

Lack of causation defence

Issue [138] Appellants’ submissions [139] Respondents’ submissions [166] Discussion [169] Conclusion [182]

Mr and Mrs Boe : misrepresentation [183]

Submissions [186] Relevant law [190] (a) Meaning of “misrepresentation” [192] (b) Made “by or on behalf of” [197] (c) Made “to him” [198] (d) Inducement [199] Application of the principles – Mrs Boe’s email [202] Mr Murphy’s report [213] Clause 5.2 sale and purchase agreement [223] Conclusion [237]

Mr and Mrs Boe : vendor warranty [238]

Relevant contractual provisions [239]

Apellants’ submissions [242] The Boes’ submissions [250] Principles of contractual interpretation [255] Exclusion clauses [257] Building Act provisions [261] Analysis of a Vendor Warranty in cl 14.2 [266] The exclusion clause 5.3 [276] Conclusion [290]

Was Mrs Boe a head contractor? [292]

Submissions [294] Head contractor authorities [296] Analysis [319] Application of the principles in this case [323] Conclusion [336]

Limitation defence – third respondent [337] Summary of conclusions [351] Costs [356]
Other matters [357]

Introduction

[1] Stephen Aldridge, Kathleen Aldridge and CA Trustees Limited as trustees of the SL and KM Aldridge Family Trust (the Aldridges) appeal against a final determination of the Weathertight Homes Tribunal (the Tribunal) at Auckland, dated
28 October 2010 (the decision).1 The appellants challenge on some 25 grounds of fact and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aldridge v Boe

Details

AGLC: Aldridge v Boe [2012] NZHC 277
Case: [2012] NZHC 277
Decision Date: 10 January 2012

CaseChat Overview and Summary

The appeal concerns the sale of a property at 11 Riverlinks Lane, Hamilton, by the Boes to the Aldridges. The Boes had built the property themselves on land they owned, and they had lived in the property for approximately seven years before selling it to the Aldridges at an auction in November 2006. The property did not have a Code of Compliance Certificate. The Aldridges subsequently brought a claim before the Weathertight Homes Tribunal for the cost of repairs to their home, estimated in the statement of claim at $1,100,000 together with general damages of $25,000 and consequential loss of $35,670. The Tribunal dismissed the claim. The Aldridges appeal against the decision of the Tribunal, and the Boes appeal against the finding that Mrs Boe was a head contractor. The issues on appeal are whether the Boes made any misrepresentations to the Aldridges, whether the Boes breached a vendor warranty, whether Mrs Boe breached her duty of care as a head contractor, whether the defence of voluntary acceptance of risk applies, and whether the respondents were responsible for the loss. The Court found that the Boes did not make any misrepresentations to the Aldridges, that the Boes did not breach a vendor warranty, that Mrs Boe did not breach her duty of care as a head contractor, that the defence of voluntary acceptance of risk applied, and that the respondents were not responsible for the loss. The Court dismissed the appeal and the cross-appeal.

Orders