Dibble v Civic Lane Limited - [2023] NZHC 1582

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-0028

[2023] NZHC 1582

BETWEEN
JOHN ANDREW DIBBLE

Plaintiff

AND

CIVIC LANE LIMITED

Defendant

Hearing: 13 June 2023

Appearances:

T J M Ashley for the Plaintiff

A M Cameron for the Defendant

Judgment:

23 June 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 23 June 2023 at 1.30 pm.
Pursuant to Rule 11.5 of the High Court Rules.

…………………..
Registrar/Deputy Registrar

Solicitors:
Bankside Chambers, Eldon Chambers

Counsel:
Bankside Chambers, Eldon Chambers

DIBBLE v CIVIC LANE LTD [2023] NZHC 1582 [23 June 2023]

Introduction

[1] The defendant, Civic Lane Limited (Civic Lane) is the developer of a residential apartment building known as “The CAB” on Greys Avenue, Auckland Central. Prior to its construction, apartments in the development were marketed for sale on terms that are colloquially referred to as “off the plans”.

[2] The plaintiff, John Dibble, was introduced to the development in 2020. Mr Dibble was not attracted to the size of the apartments that were on offer by Civic Lane so he negotiated terms to purchase one apartment to be constructed in what was originally conceived as the space to be occupied by two apartments. The parties signed an agreement for sale and purchase in December 2020 (the SPA).

[3] Construction of the apartment building was completed by October 2022, and settlement of the sale of the apartment to Mr Dibble was to take place on 1 November 2022. Prior to the settlement date, a dispute arose between the parties regarding the purchase price for the apartment, and in particular, whether Civic Lane was entitled to increase the purchase price for variations to the construction of the apartment.

[4] On 27 October 2022, Civic Lane issued a settlement statement to Mr Dibble, which included a claim for an increase in the purchase price of $167,795.14 due to variations to the construction of the apartment. Mr Dibble refused to settle on that basis, contending that his liability for variations was limited to the increased cost of certain bathroom fixtures and kitchen appliances selected by Mr Dibble, in total
$12,191.15.

[5] Neither party was prepared to settle on 1 November 2022 based on the price asserted by the other. On 2 November 2022, Mr Dibble issued a settlement notice to Civic Lane requiring settlement in accordance with Mr Dibble’s position on price. Civic Lane refused to settle on that basis.

[6] Mr Dibble now seeks an order by way of summary judgment for specific performance of the SPA on terms consistent with his position on price. Civic Lane

continues to maintain that it is entitled to claim variations of $167,795.14 as part of the purchase price.

Formation of the SPA

[7] The background that led to the formation of the SPA is largely agreed. Mr Dibble was dealing with Civic Lane’s salesperson, Suzie Paine of Bayleys Real Estate Limited. On 19 October 2020, Ms Paine sent an email…

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 Dibble v Civic Lane Limited

Details

AGLC: Dibble v Civic Lane Limited [2023] NZHC 1582
Case: [2023] NZHC 1582
Decision Date: 23 June 2023

CaseChat Overview and Summary

Dibble v Civic Lane Limited involves a dispute between the plaintiff, John Dibble, and the defendant, Civic Lane Limited, over the purchase price of an apartment in a residential building known as "The CAB" in Auckland Central. The apartment was marketed "off the plans" and Mr. Dibble negotiated to purchase an apartment to be constructed in a space originally planned for two apartments. The parties signed an agreement for sale and purchase (the SPA) in December 2020. Upon completion of the construction in October 2022, a dispute arose over the purchase price, specifically regarding whether Civic Lane was entitled to increase the price for variations to the construction of the apartment. Civic Lane claimed an increase of $167,795.14, while Mr. Dibble contended his liability for variations was limited to certain bathroom fixtures and kitchen appliances, totaling $12,191.15. Mr. Dibble sought an order for specific performance of the SPA on terms consistent with his position on price. The legal issues before the court were the proper interpretation of clause 20 of the SPA and whether there was a factual dispute regarding the application of that clause such that summary judgment was not appropriate. The court found that clause 20 required Civic Lane to consult with Mr. Dibble regarding the floor plan and layout of the bespoke apartment, and that any adjustment to the purchase price for changes to the outline specifications was subject to Mr. Dibble’s agreement. However, Civic Lane failed to obtain Mr. Dibble’s agreement for the variations claimed, and the court held that Civic Lane was not entitled to the claimed adjustments to the purchase price. The court granted Mr. Dibble’s application for summary judgment and ordered Civic Lane to settle the SPA in accordance with Mr. Dibble’s settlement notice dated 2 November 2022. The defendant was ordered to pay costs to the plaintiff on a 2B basis plus disbursements as fixed by the Registrar.

Orders