Bhargav v First Trust Ltd - [2022] NZHC 1710

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1260

[2022] NZHC 1710

BETWEEN
AMEET BHARGAV and RENU KHAJURIA

Plaintiffs

AND

FIRST TRUST LIMITED

First Defendant

DAVINDER SINGH RAHAL
Second Defendant

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Hearing: 9 March 2022 and 16 June 2022

Counsel:

S E Wroe for Plaintiffs

No appearance by or on behalf of Defendants

Judgment:

20 July 2022

JUDGMENT OF HINTON J

This judgment was delivered by me on 20 July 2022 at 10.00 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Grant & Co (Auckland) for Plaintiffs

BHARGAV v FIRST TRUST LIMITED [2022] NZHC 1710 [20 July 2022]

AND METSONS (NZ) LIMITED

Third Defendant
VINAY MEHTA
Fourth Defendant
LOCAL REALTY LIMITED
Fifth Defendant
GURBIR SINGH BAL
Sixth Defendant

Introduction

[1] Ameet Bhargav and Renu Khajuria claim against six defendants in relation to the plaintiffs’ purchase of what it transpires is a leaky home at 1/5 Ribbonwood Crescent, Goodwood Heights, Auckland (the property). The first to fourth defendants were served but did not file a statement of defence. The plaintiffs proceed against them by formal proof.

[2] The claims against the fifth and sixth defendants will be the subject of a four-day defended hearing beginning on 23 February 2023.

Parties

[3]The plaintiffs are the owners of the property.

[4] The first defendant, First Trust Limited (FTL) is the previous owner of the property. It sold the property to the plaintiffs.

[5] The second defendant, Mr Rahal, is a director and shareholder of FTL along with his wife, Jivan Jyoti Rahal.

[6] The third defendant, Metsons (NZ) Limited (Metsons), is a building inspection company and provided a pre-purchase inspection report on the property to the plaintiffs.

[7] The fourth defendant, Mr Mehta, is a building inspector and a director and shareholder of Metsons. He carried out the pre-purchase inspection of the property.

[8] The fifth defendant, Local Realty Limited (Local Realty), is the holder of a Century 21 franchise for its business as a real estate agency. FTL engaged Local Realty as its agent in the sale of the property to the plaintiffs.

[9] The sixth defendant, Mr Bal, is a real estate agent and a director and shareholder of the fifth defendant. Mr Bal was the real estate agent in relation to the sale to the plaintiffs.

Summary of claims

[10]Against FTL, the plaintiffs claim:

(a)breach of contractual warranty for unconsented building work; and

(b)misleading and deceptive conduct in breach of the Fair Trading Act 1986 (FTA), s 9.

[11] In relation to the claim for breach of contractual warranty, the plaintiffs seek by way of damages for breach of contract:

(a)the estimated cost of remedial work ($749,080 GST inclusive) or in the alternative, the diminution in the value of the property and lost capital gain ($480,000);

(b)consequential losses including the cost of expert reports, the cost of alternative accommodation, moving and storage costs and loss of income from boarders ($88,543);

(c)general damages ($30,000);

(d)interest pursuant…

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 Bhargav v First Trust Ltd

Details

AGLC: Bhargav v First Trust Ltd [2022] NZHC 1710
Case: [2022] NZHC 1710
Decision Date: 20 July 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiffs, Ameet Bhargav and Renu Khajuria, brought claims against the first to fourth defendants in relation to the purchase of a property that turned out to be a leaky home. The first defendant, First Trust Limited (FTL), was the previous owner of the property and sold it to the plaintiffs. The second defendant, Mr Rahal, is a director and shareholder of FTL. The third defendant, Metsons (NZ) Limited, provided a pre-purchase inspection report on the property. The fourth defendant, Mr Mehta, is a building inspector and a director and shareholder of Metsons. The plaintiffs' claims against the fifth and sixth defendants were to be heard in a separate proceeding. The plaintiffs claim against FTL for breach of contractual warranty and misleading or deceptive conduct under the Fair Trading Act 1986 (FTA). They also claim against the second to fourth defendants for misleading or deceptive conduct under the FTA. The court found FTL in breach of the contractual warranty for unconsented building work and for misleading and deceptive conduct. The second to fourth defendants were also found to have engaged in misleading and deceptive conduct under the FTA. The court awarded the plaintiffs the cost of repair work, consequential losses, general damages, interest, and costs. The first to fourth defendants were found liable on a joint and several basis for damages, interest, costs, and disbursements. The plaintiffs were awarded $861,113 plus interest running from 23 February 2022, $25,095 in costs, and $8,399.81 in disbursements.

Orders