Brebner v Collie - [2013] NZHC 63

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-1447 [2013] NZHC 63

BETWEEN MICHELLE ANNE BREBNER AND DARCY RAYMOND WENTZEL Appellants

ANDLUONIE BETH COLLIE Respondent

Hearing: 28 June 2012

Appearances: G D R Shand and N J van der Wal for Appellants
Respondent in person

Judgment: 8 March 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 8 March 2013 at 3 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Grimshaw & Co, Auckland: natasha.vanderwal@grimshaw.co.nz

Copy for: L B Collie, luonieb@clear.net.nz
G D R Shand, Auckland: grant@grantshand.co.nz

BREBNER V COLLIE HC AK CIV-2012-404-1447 [8 March 2013]

Introduction

[1] The Appellants (“purchasers”) appeal from a decision of the Weathertight

Homes Tribunal (“Tribunal”), sitting at Auckland.1

[2] The purchasers commenced proceedings in the Tribunal in respect of leaks in a residential property they purchased from the Respondent (“vendor”) in 2007. They sought relief in tort on the basis that the vendor was liable to them for breach of a duty of care and in contract for breach of warranty in the agreement for sale and purchase between the parties (“agreement”). The claim in contract was based on clause 6.2(5)(b) of the agreement, being clause 6.2(5)(b) of the eighth edition of the Auckland District Law Society form of agreement for sale and purchase.

[3] The Tribunal determined:

(a) that the house was subject to moisture ingress due to deficiencies in the installation of joinery; a flat topped chimney; and insufficient ground clearances on some elevations;2

(b) that further damage was likely as a result of other defects;3

(c) that remediation of the house would cost $350,384 (including GST)

and that the vendors had suffered consequential losses of $37,593.48;

(d)that the vendor was not liable in tort as she did not owe a duty of care to the purchasers; and

(e) that the vendor was not liable in contract as she had not breached clause 6.2(5)(b) of the agreement.

1 Brebner v Collie [2012] NZWHT Auckland 15.
2 Ibid, at [55].
3 Ibid, at [56].

[4] On appeal the purchasers contended that moisture ingress has been caused by a greater number of defects than the Tribunal determined, and that the Tribunal erred in the determinations referred to in (d) and (e). The purchasers sought an award of the sums referred to in (c) and an award of $50,000 general damages, being $25,000 for each of them. Before me the vendor took issue with the cost of repairs but she did not file a notice of cross appeal, and for that reason I do not propose to consider that issue.

Jurisdiction/approach on appeal

[5] The purchasers have a general right of appeal from the determination, as follows:4

93 Right of appeal

A party to a claim that has been determined by the tribunal may appeal on a question of law or fact that arises from the determination.

[6] The approach of the Court on appeal is that set out in Austin Nicholls &…

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 Brebner v Collie

Details

AGLC: Brebner v Collie [2013] NZHC 63
Case: [2013] NZHC 63
Decision Date: 8 March 2013

CaseChat Overview and Summary

Michelle Anne Brebner and Darcy Raymond Wentzel (the "Appellants") appeal a decision of the Weathertight Homes Tribunal ("Tribunal") which found that the Respondent, Luonie Beth Collie, was not liable for moisture ingress in a residential property purchased from her in 2007. The Appellants brought their claim in tort for breach of a duty of care and in contract for breach of warranty in the agreement for sale and purchase between the parties. The Tribunal determined that the vendor was not liable in tort and in contract for breach of warranty. The Appellants contend that the Tribunal erred in its determinations. The Court found that the Tribunal did not err in concluding that the vendor did not owe the Appellants a duty of care. The Court found that the Tribunal erred in concluding that the vendor had not breached the warranty in clause 6.2(5)(b) of the agreement. The case is remitted back to the Tribunal for further argument and determination of the quantum of damages that flow from the breach, the consequential losses and/or general damages, if any, that should be awarded to the Appellants and whether events after execution of the agreement and prior to it being declared unconditional preclude the Appellants asserting a breach of warranty or recovering for any such breach. The vendor is not eligible for an award of costs. The Appellants may wish to seek costs, in which case they should file and serve a memorandum, with the vendor to file and serve any response to that memorandum within 14 days of receipt.

Orders