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Body Corporate 202254 v Taylor

Body Corporate 202254 v Taylor

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA205/06
[2008] NZCA 317
BETWEENBODY CORPORATE 202254

First Appellant
ANDCITY RENTAL TRUSTEES LIMITED & ORS

Second Appellant

ANDSTEPHEN FREDERICK TAYLOR

Respondent

Hearing:20 November 2007

Court:William Young P, Glazebrook, Chambers, Arnold and Ellen France JJ
Counsel:T J Rainey for Appellants

P H Thorp, T J Thorp and A J Hales for Respondent

Judgment:22 August 2008 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed and the claim in negligence (other than the claim based on a non-delegable duty) is reinstated.
BThe cross-appeal is allowed but only to the extent that the Fair Trading Act 1986 claim associated with alleged representations as to the identity and substance of the developer is struck out.
CMr Taylor is to pay to the owners costs of $6,000 together with usual disbursements.

____________________________________________________________________
REASONS
William Young P and Arnold J  [1]
Glazebrook and Ellen France JJ  [100]
Chambers J  [122]
WILLIAM YOUNG P AND ARNOLD J
(Given by William Young P)
Table of Contents
Para No

Introduction  [1]
Factual background  [3]
The claims against Mr Taylor as pleaded  [7]
Judgments in the High Court  [9]
Overview - general  [13]
The claim in negligence – an overview  [23]
        The Trevor Ivory case  [23]
        The Williams case  [27]
        Analysis of the reasoning in Trevor Ivory and Williams[29]
        The negligence claims in this case  [35]
The Fair Trading Act claims – an overview  [45]
        Section 9  [45]
        Do the owners have a reasonable prospect of establishing at
          trial that the first passage was false (and thus misleading and
          deceptive)?  [50]
        Do the owners have a reasonable prospect of establishing at
          trial that the second passage was false (and thus misleading
          and deceptive)?  [56]
        Are a disclaimer in the brochure and exclusion clauses in the
          Agreements for sale and purchase conclusive against the owners?     [60]
        Do the owners have a reasonable prospect of establishing at trial
          that Mr Taylor is responsible under the Fair Trading Act for
          any deceptive and misleading statements in the brochure?                  [65]
        Do the owners have a reasonable prospect of establishing at trial
          that loss was caused by any deceptive and misleading statements
          in the brochure?  [88]
Drawing the threads together  [93]
Disposition  [99]
Introduction
[1]        These proceedings concern a residential development which is affected by leaky building syndrome. Mr Stephen Taylor was the principal behind the companies responsible for the development. The owners of the units have sued Mr Taylor (along with a number of other defendants) to recover their losses. As against Mr Taylor, they have pleaded causes of action under s 9 of the Fair Trading Act 1986 and in negligence. In the High Court, Keane J struck out the negligence claims but refused to strike out the Fair Trading Act claims (HC AK CIV-2003-404-3116 13 April 2005 and 29 August 2006). Both sides appeal.
[2]        The case gives rise to issues which are intrinsically difficult and are further complicated because…

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.

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Details

Case: [2008] NZCA 317
Decision Date: 22 August 2008

CaseChat Overview and Summary

Body Corporate 202254 and others (the "owners") commenced proceedings against Stephen Frederick Taylor and others seeking damages for their losses associated with the costs of repair and stigma in relation to a residential development. The owners alleged that Mr Taylor was negligent in his conduct and management of the development. The owners also alleged that Mr Taylor was liable under the Fair Trading Act 1986. The High Court struck out the negligence claims but refused to strike out the Fair Trading Act claims. Both sides appealed. The Court of Appeal held that the appeal should be allowed and the claim in negligence (other than the claim based on a non-delegable duty) should be reinstated. The Court of Appeal also held that the cross-appeal should be allowed but only to the extent that the Fair Trading Act 1986 claim associated with alleged representations as to the identity and substance of the developer should be struck out. The Court of Appeal held that Mr Taylor should pay to the owners costs of $6,000 together with usual disbursements.

Orders