Anderson v De Marco - [2019] NZHC 570

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-622

[2019] NZHC 570

BETWEEN NORMAN HUGH ANDERSON and REBECCA ALICE CARRASCO
Plaintiffs

AND

EUGENE JOHN DE MARCO

Defendant

Hearing: 25 March 2019

Appearances:

E Dalzell for plaintiffs

R Laurenson for defendant

Judgment:

26 March 2019

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1] Before the Court is an application under r 9.34 of the High Court Rules 2016 for an order authorising the plaintiffs to carry out certain testing on the residential property owned by the defendant which is the subject matter of the proceeding. It is common ground that an order should be made. The controversary is as to the arrangements for carrying out the testing and its scope.

[2] At the outset, Mr Dalzell for the plaintiffs sought an order excluding affidavit evidence filed on behalf of the defendant from Mr Michael Winton. He did so on three grounds. I will focus on one. He submitted that Mr Winton was precluded from putting himself forward as an independent expert witness because he, personally or through his company, had an interest in the proceeding. It turns out that Mr Winton’s company, Building Science Ltd, was retained by the defendant to undertake a survey of the property which is the subject of this proceeding prior to it being put on the market. His report was provided to interested parties. Aspects of this feature in the

ANDERSON v DE MARCO [2019] NZHC 570 [26 March 2019]

plaintiffs’ cause of action as they allege that it contains misrepresentations which induced them to enter into a contract to purchase the property. Thus, the accuracy of aspects of Mr Winton’s conclusions are at issue in this proceeding. As Mr Dalzell submits, that makes Mr Winton or his company a potential party to this proceeding, although there is no suggestion at present that Mr de Marco proposes to make a third party claim. I agree with Mr Dalzell’s submission that that is enough to preclude Mr Winton being accepted by the Court as a genuinely independent expert witness.

[3] However, for the purposes of this interlocutory application only, I declined to exclude Mr Winton’s evidence.

[4] In those circumstances, Mr Dalzell sought to introduce a response from the plaintiffs’ expert witness. I declined to allow that evidence in on the basis that its introduction at this stage would be prejudicial from the defendant’s perspective.

[5] It is not necessary to go into a great deal of detail as to the substantive claim. Essentially, in December 2017, the parties entered into a contract pursuant to which the defendant agreed to sell and the plaintiffs agreed to purchase the former’s property in Wellington. Subsequently, after the plaintiffs had paid a ten per cent deposit, but prior to settlement, the plaintiffs concluded — rightly or wrongly — that the defendant had made certain pre-contractual misrepresentations and breached certain warranties contained in the contract.

[6]In June 2018 the plaintiffs gave notice of…

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 Anderson v De Marco

Details

AGLC: Anderson v De Marco [2019] NZHC 570
Case: [2019] NZHC 570
Decision Date: 26 March 2019

CaseChat Overview and Summary

The case of Anderson v De Marco before the High Court of New Zealand Wellington Registry involved the plaintiffs, Norman Hugh Anderson and Rebecca Alice Carrasco, seeking an order to carry out testing on the residential property owned by the defendant, Eugene John De Marco. The plaintiffs sought the testing to better inform themselves about various aspects of the property, including the state of the property, disclosure of work carried out, and compliance with resource consents. The defendant opposed the scope and arrangements of the proposed testing. The court was required to decide on the balance between the plaintiffs' need for testing and the defendant's property rights, as well as whether certain evidence should be excluded.

The court found that the plaintiffs should be allowed to carry out the testing they deemed necessary, provided that reasonable and appropriate safeguards were in place to protect the defendant's property rights and to ensure that the plaintiffs would be responsible for any damage caused. The court preferred the evidence of the plaintiffs' expert, Mr Thomas Wutzler, over that of the defendant's expert, Mr Michael Winton, as it believed that Mr Wutzler had a better grasp of the issues in the case. The court made orders allowing the plaintiffs' expert to carry out the testing, with certain restrictions and safeguards in place, such as limiting the testing to non-destructive methods where possible and requiring the plaintiffs to be responsible for any damage caused.

In conclusion, the court granted the plaintiffs' application for testing on the property, with certain restrictions and safeguards in place to protect the defendant's property rights. The scope of the testing was limited to non-destructive methods where possible, and the plaintiffs were required to be responsible for any damage caused. The court reserved costs until after the testing process and make-good work had been completed.

Orders