Edwards v Cull - [2017] NZHC 336

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-547 [2017] NZHC 336

BETWEEN
PATRICK ANTHONY EDWARDS AND

COLLEEN EDWARDS Plaintiffs

AND

NELSON JOHN PATRICK CULL AND ELIZABETH MEGAN CULL

First Defendants

DWELL HEALTHY HOMES LIMITED Second Defendant

ANTHONY JOHN WINTER Third Defendant

PAUL JOHN DEMPSEY Fourth Defendant

Continued over page

Hearing: 10 October 2016

Appearances:

S F Powrie for Plaintiffs

Judgment:

3 March 2017

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 3 March 2017 at 4.30 pm pursuant to r 11.5 of the High Court Rules

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

Solicitors: Grove Darlow & Partners, Auckland

EDWARDS v CULL [2017] NZHC 336 [3 March 2017]

AND
PAUL JOHN DEMPSEY, MICHELE

AVENELL DEMPSEY, JONATHAN PAUL STUART HESLOP and FINBAR NOMINEES LIMITED

Fifth Defendants

GS MASTERS BUILDERS LIMITED Sixth Defendant

SCOTT AARON MASTERS Seventh Defendant

GRANT ROSS MASTERS Eighth Defendant

THE DC CO LIMITED (formerly Dominion

Constructors (1973) Limited) Ninth Defendant

MSC CONSULTING GROUP LIMITED (formerly known as McGuigan Syme Chilcott Limited)

Tenth Defendant

SOLID PLASTERERS LIMITED Eleventh Defendant

STEPHEN ROY MOYLE Twelfth Defendant

AUCKLAND COUNCIL Thirteenth Defendant

AND

GREGORY CLAYTON WATERHOUSE First Third Party

AJ RUSSELL BRICKLAYERS LIMITED Second Third Party

Introduction

[1] The plaintiffs, Mr and Mrs Edwards, seek judgment against the second and third defendants, Dwell Healthy Homes Ltd (“Dwell”) and Mr Anthony Winter, a building inspector and a director of Dwell. Mr and Mrs Edwards claim against Dwell and Mr Winter is in negligent misstatement.

[2] The proceeding was for trial on the date of hearing. However, there was no appearance for Dwell or Mr Winter and for reasons set out below, I have determined this proceeding in accordance with High Court Rules, rr 10.7 and 15.9 (the differences between them for present purposes being immaterial). I have also had regard to the principles regarding formal proof referred to in: Chen v Zhong; Neumayer v Kapiti Coast District Council; Ferreira v Stockinger; Kim v Cho; and
Superior Blocklayers Ltd (in liq) v Bacon.1

[3] Mr and Mrs Edwards’ claim arises from their purchase in 2011 of what they subsequently discovered was a leaky home (“property”), and which they have repaired at a cost of more than $1 million. The home was built in 2003 and 2004. In
2014, Mr and Mrs Edwards issued proceedings against 13 defendants, comprising those associated with the construction of the home and those associated with Mr and Mrs Edwards’ purchase. Mr and Mrs Edwards have resolved and/or discontinued their proceedings as regards 11 defendants and, to date, have recovered approximately $1 million. The Edwards have applied this sum in reduction of their total loss which, in addition to the costs of repair, includes interest and legal costs. The sum claimed from Dwell and Mr Winter is approximately $360,000.

[4] For the reasons set out below, I decline to enter judgment as sought.

Background

[5] The Edwards, as prospective purchasers of the property, received what I refer to as the first Dwell…

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 Edwards v Cull

Details

AGLC: Edwards v Cull [2017] NZHC 336
Case: [2017] NZHC 336
Decision Date: 3 March 2017

CaseChat Overview and Summary

Mr and Mrs Edwards sought judgment against Dwell Healthy Homes Ltd and Mr Anthony Winter, a building inspector and director of Dwell, on a claim of negligent misstatement. The claim arose from the Edwards' purchase of a leaky home in 2011, which they later discovered had significant weathertightness issues. They had already recovered approximately $1 million from 11 other defendants and sought around $360,000 from Dwell and Mr Winter. Dwell and Mr Winter failed to appear for the hearing and did not respond to the proceedings, leading to the matter being decided under the High Court Rules for formal proof.

The central legal issue was whether the Edwards could establish a negligent misstatement against Dwell and Mr Winter based on the reports they provided. To succeed, the Edwards had to prove the making of a false or misleading statement, that Dwell and Mr Winter owed them a duty of care, that they reasonably relied on the statements, and that they suffered loss as a result. Dwell and Mr Winter admitted owing a duty of care but denied the other allegations.

The court found that the Edwards' claim was based on an incorrect interpretation of the Dwell reports. The reports explicitly stated that they did not guarantee compliance with the building code and noted the limitations of their moisture detection process. The Edwards' claim that the reports falsely stated the house did not leak was not supported by the content of the reports. Even if the reports were construed together, they did not make the unequivocal claim the Edwards suggested. The court concluded that the Edwards could not establish the necessary misstatement and declined to enter judgment as sought.

Orders