Edwards v Cull
[2014] NZHC 1556
•1 July 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-547 [2014] NZHC 1556
IN THE MATTER OF 14A Challenger Street, St Heliers,
Auckland
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
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
EDWARDS and EDWARDS v CULL and CULL [2014] NZHC 1556 [1 July 2014]
MSC CONSULTING GROUP LIMITED (formerly McGUIGAN SYME CHILCOTT LIMITED)
Tenth Defendant
SOLID PLASTERERS LIMITED (formerly STEVE MOYLE SOLID PLASTERERS LIMITED) Eleventh Defendant
STEPHEN ROY MOYLE Twelfth Defendant
AUCKLAND COUNCIL Thirteenth Defendant
Hearing: 1 July 2014 Appearances:
T J G Allan for Plaintiffs
T J Rainey for First Defendants
No appearances for other partiesJudgment:
1 July 2014
ORAL JUDGMENT OF ASSOCIATE JUDGE BELL
Solicitors:
Grove Darlow & Partners (TJG Allan), Auckland, for Plaintiffs
Rainey Law (TJ Rainey), Auckland, for First Defendant
McVeagh Fleming (PA Fuscic), Auckland, for Fourth and Fifth Defendants
Legal Vision (Tim Bates/Katrin Lee), Auckland
Jones Fee (PM Fee/TJ Wood), Auckland, for Tenth DefendantEdmonds Judd (CW Grenfell), Te Awamutu, for Eleventh and Twelfth Defendants
Simpson Grierson (M S Harrison/K Lydiard) Auckland, for Thirteenth Defendant
Copy for:
Anthony John Winter, Third Defendant
[1] In March 2011 Mr and Mrs Edwards successfully bid at an auction to buy the property at 14A Challenger Street, St Heliers, Auckland. The vendors were the first defendants, Mr and Mrs Cull. The Edwards paid $1,950,000.00 for the property. The purchase settled in April 2011. Two years later, the Edwards found that the property had significant water ingress problems. They say that there are numerous defects which require extensive remedial work. These costs are estimated to be about $750,000. The Edwards are also claiming a stigma loss of $100,000 and consequential losses of $60,000.
[2] The Edwards have sued a range of people whom they allege to be responsible for their losses. This hearing is concerned only with their claim against Mr and Mrs Cull. The Edwards say that the Culls are liable to them for damages for misrepresentation under s 6(1) of the Contractual Remedies At 1979. The misrepresentations they rely on arise out of reports which were obtained by Mr and Mrs Cull from a building inspection company called Dwell Healthy Homes Ltd, which provided an initial report in January 2011 and a later letter of 1 March 2011. The case is pleaded as relying on the letter of 1 March 2011, but in submissions Mr Allan, for the plaintiffs, widened the case to encompass the earlier report and statements attributed to the salesman of the real estate agent who acted on the sale.
[3] The Culls say that this claim cannot possibly be right. They have applied for summary judgment against the Edwards. Their application pleads, amongst other things, that the letter of 1 March 2011 is not a misrepresentation by them for the purpose of s 6 of the Contractual Remedies Act as:
(a) the letter is a statement of opinion by the second and/or third defendant and is not a statement of past or present fact;
(b)to the extent that the opinions expressed in the letter contain a representation of material facts, those facts were true; and
(c) if the letter is a misrepresentation (which is denied), that representation was not made by or on behalf of the first defendants.
[4] By the time Mr Rainey came to make his submissions in reply, he submitted that the case came down to what he regarded as a simple point – that is, whether representations were made by or on behalf of Mr and Mrs Cull under s 6(1) of the Contractual Remedies Act. It is, however, necessary to address other matters before I come to that.
Principles on a defendant’s summary judgment application
[5] Both sides agree that the principles applied in a defendant’s application for summary judgment under r 12.2(2) of the High Court Rules are set out in the judgment of the Court of Appeal in Westpac Banking Corporation v MM Kembla NZ Ltd.1 I emphasise certain matters set out in that judgment:
(a) Except in clear cases, it is not appropriate to decide by summary procedure the sufficiency of the proof of the plaintiff ’s claim. The Court of Appeal said that that would permit a defendant, perhaps more in possession of the facts than the plaintiff - as is not uncommon when the plaintiff is the victim of deceit - to force on the plaintiff ’s case prematurely before completion of discovery or of interlocutory steps and before the plaintiff ’s case can reasonably be assembled.
(b) The defendant bears the onus of satisfying the court that all the
plaintiff’s claims cannot succeed.
(c) On summary judgment applications the court can allow a plaintiff the opportunity to amend its case. A summary judgment application is not a strike-out proceeding. If the case is capable of reasonable repair by amendment, then the plaintiff should be given an opportunity. Striking out for inadequate pleadings risks an injustice because, as the court pointed out, summary judgment results in issue estoppel.
[6] I have emphasised the point about the burden of proof being on the defendant throughout because in certain parts of his submissions Mr Rainey argued that there
1 Westpac Banking Corporation v MM Kembla NZ Ltd [2001] 2 NZLR 298 (CA), in particular at
[58]-[68].
were gaps in the case for the Edwards, that there were matters on which they had not given evidence, and that there were matters which they had not raised in argument. I am dealing with the case on the basis of what the defendants have established. I am drawing no inference against the plaintiffs based on absence of evidence. While having stated that the general approach is that the burden is on the defendant throughout, I note that there is one exception. In another case I have made an exception where a plaintiff has pleaded fraud, dishonesty or reprehensible conduct against a defendant. I have taken the approach that once the defendant puts those
matters in issue, the plaintiff has an onus to show a prima facie case.2 This is not
such a case. There is no suggestion that either the Culls or Dwell Healthy Homes Ltd were engaged in any dishonesty. Section 6 of the Contractual Remedies Act makes it clear that there may be a claim for misrepresentation even if the misrepresentation is innocent.
[7] As another preliminary matter, I make it clear that I am dealing only with issues between the Culls as vendors and the Edwards as purchasers. The Edwards have sued other people, including Dwell Healthy Homes Ltd and its director, Mr Winter. Nothing I say in this decision should be treated as making any findings as to any rights or liabilities applying either between the Edwards and Dwell Healthy Homes Ltd and Mr Winter or between the Culls and Dwell Healthy Homes Ltd and Mr Winter.
Background
[8] On their side, the Culls say that they bought the property at 14A Challenger Street in July 2008. By then the house had already been built and a code compliance certificate had been issued. While Mr Cull does not say so expressly, I infer that the Culls did not have any building work carried out on the property while they owned it. Mr Cull does say that they had no significant problems with the property while they were the owners and that they carried out some minor maintenance but not in the areas which have been identified as problematic in the statement of claim. He says that the weathertightness issues raised in this proceeding have come as a
complete surprise to him and his wife.
2 Ng v Harkness Law Ltd [2014] NZHC 850 at [55].
[9] In 2010 the Culls decided to move to the Bay of Plenty and put the property on the market. They listed the property with land agents, Unlimited Potential. Unlimited Potential recommended that before the property was put on the market they should obtain a pre-purchase building inspection report to assist in marketing the property. The Culls acted on that advice. They engaged Dwell Healthy Homes Ltd to carry out an inspection and prepare a report on the house.
[10] I understand Dwell Healthy Homes Ltd to be a company that carries out building inspections. Its director is Mr Anthony Winter. Mr Cull says that he engaged Dwell Healthy Homes Ltd as an independent contractor to carry out a one- off task, and that was the extent of the relationship. The report prepared by Mr Winter is dated 12 January 2011. It was prepared with a view to advising the Culls and any potential purchasers whether there would be any significant moisture issues in this house. The report contains some limitations and disclaimers. In particular there is this:
This survey has been carried out in accordance with NZS4306: 2005 and is not a statement that a property complies with the requirement of any act, regulation or bylaw, nor is the report a warranty against any possible problems not seen or noted during the survey, or developing after the date of this property report.
Refer to NZS 4306:2005 for full details
[11] The report records that a moisture meter was used. No invasive testing was carried out. Because there may be limitations in using non-invasive testing, it makes recommendations for ongoing peace of mind. It says at the end of the report:
…there is no foolproof method from one piece of equipment that can identify moisture in every location, and there is no guarantee that any moisture will be detected, especially if ingression is from the outside, other than a fixed MDU probe system or a full invasive weathertight inspection.
[12] With those disclaimers and limitations, the report does appear to give the property a clean bill of health. It does not record any significant moisture ingress issues in the house.
[13] For the plaintiffs, Mr Edwards says that Unlimited Potential introduced them to the property in February 2011. Their salesman provided them with a LIM report,
a copy of the certificate of title, a brochure and the Dwell Healthy Homes Ltd report of 12 January 2011. The salesman explained to them that one of the features of the property was that it was a masonry home, not a plaster-clad house associated with leaky home defects. Mr Edwards was reinforced in his belief that the property would not be a leaky home by reading the Dwell Healthy Homes report. In his affidavit Mr Edwards focuses on these paragraphs of the report:
2(a) The house is solid concrete block to both levels plastered and coated with a paint system that will need recoating every 7 plus years to maintain the weathertightness of the coating system…
2(b) There are the odd minor cracks that will also appear during the life of the building and just need to be kept sealed and maintained. These cracks would generally not constitute a leak issue because the construction is concrete block which is not the usual plaster clad type home and should not be classified as a risk like all the other types of plaster clad homes associated with leaky homes…
[14] Mr Edwards says that he was reassured by both the salesman’s comments and
the statements of the Dwell Healthy Homes report.
[15] The Edwards still proposed having the property inspected by someone of their own choice. On behalf of the Culls, the salesman agreed to that so long as the Edwards sent the Culls a copy of the report obtained by the Edwards. The Edwards instructed Able Inspections Ltd to make a report. The person who made that report was a Mr Chris Underwood, a director of that company.
[16] The report of Able Inspections Ltd identifies certain matters of importance on the question of moisture ingress. Page 2 of the report identifies on the north elevation moisture stains visible on the underside of the pergola, with a recommendation for further investigation. Page 3 of the report identifies moisture readings taken in skirting boards inside exterior walls of the bedroom, with a recommendation for further investigation. Page 4 of the report refers to moisture readings taken in skirting boards by the side of the garage door with a reading of a maximum of 90 per cent, and a recommendation for further investigation. The report contains recommendations including this:
Invasive inspections are recommended in walls where higher moisture readings were recorded to determine the source of water ingress and extent of repair.
Water ingress to garage is more than likely due to roof, gutter or roof flashing leak.
The exterior of the building should be kept well sealed and painted to ensure long term waterproofing.
[17] As arranged, the Edwards forwarded that report to the salesman. In his email of 28 February 2011 Mr Edwards said:
Here is the building inspection report that I have had produced. The vendor has asked for a copy.
The mould in the garage is quite plain to see when we visited the open house on Saturday. What does the vendor propose to do about it and the other two places high moisture readings are recorded?
[18] The salesman replied by email on 2 March 2011:
Hi Patrick
The vendor at 14A Challenger Street has had his building inspector back to review the reported issues.
Prior to speaking to his builder, he was very open to walls being opened for further inspection and remedy at his cost.
However, after having had his builder, Tony Winter, re-visit and re-inspect the property, he is convinced there are no issues (as has been suggested in your report).
We await the formal response from the vendor. Tony Winter will formalise a written response to the report you obtained. We will forward this to you a.s.a.p. …
The rest of the email is not directly relevant.
[19] Soon afterwards Mr Cull forwarded to the salesman, who then forwarded it on to the Edwards, a letter from Mr Winter on Dwell Healthy Homes Ltd letterhead addressing the problems raised in the report by Able Inspections Ltd. The letter is directed at the readings in the bedroom and the garage, but does not deal with the pergola. The tone of Mr Winter’s letter is dismissive of the concerns raised in the report by Able Inspection Ltd. He says, amongst other things:
The house is made of plastered concrete block which would be very unusual to leak & I re-inspected the two places noted as my original inspection had registered no moisture readings or visual issues.
Firstly my concern is the recorded 90% reading made by this inspectors report which are bogus as any moisture reading over 50% would see moisture coming out of the wall. Other than some paintwork on the Gib lining around an internal duct in the corner of garage beside the block garage side wall, there is no such evidence & no reading using my meter…
He records opening a duct by removing a blank power point and records absence of any leaks or visual moisture or mould. He refers to a small minor orange reading in the bedroom, but he says that there were “no visual signs at all of even stained sill timber at joints, would concern me but not in this case”. He then goes on:
To record 20% as a problem is ridiculous & showing a real lack of balanced judgment pointing to the increasing incompetence of inspectors in the house inspection profession.
He adds at the end:
I am available to discuss any issues in my report & these two issues so easily refuted. If he was at all competent he could have easily checked what I have while doing the job he is being paid to do instead of upsetting the parties involved with this sale & purchase.
[20] The tenor of the Edwards’ evidence is that they took Mr Winter’s letter at face value. They preferred what was said in that letter to what their own inspector had said. They elected to go ahead with their plans to take part in the auction on
10 March 2011. They did not attend the auction personally. They arranged for the salesman to bid on their behalf. They were the successful bidders.
[21] The agreement for sale and purchase has been put in evidence. It uses the particulars and conditions of sale at auction approved by the Real Estate Institute of New Zealand and the Auckland District Law Society. The parties have not made any material alterations to the standard forms. The Edwards do not allege any breach of the agreement for sale and purchase by the Culls. There are no terms of contract that exclude liability by the vendors for misrepresentation, or impose on the purchasers the risk for relying on any representation.
The Culls’ application
[22] As part of his written submissions, Mr Rainey relied on the caveat emptor principle, that is, that the Edwards bought the property at their own risk and they
cannot look to the vendors for any defects in the property. That submission has to be seen against this background. The Culls engaged Dwell Healthy Homes Ltd to provide a pre-purchase report to assist in marketing the property. They re-engaged Dwell Healthy Homes Ltd to respond to the concerns raised by the Edwards when they obtained the report from Able Inspections Ltd. The Culls’ case is that if the assurances given by the land agent and the report given by Dwell Healthy Homes Ltd were wrong, then the Edwards as purchasers must carry the loss from relying on those statements, but the Culls can keep the benefit of the sale at $1.95m.
[23] That shows the ugly side of the caveat emptor principle. It is not an attractive result if the Culls are to benefit from wrong information provided by someone whom they engaged to help with the sale and the Edwards, instead, have to carry the cost for mistakenly relying on that information.
[24] The Culls say that they had no personal knowledge of any moisture issues in the house at 14A Challenger Street. At this stage, that is simply an assertion which may be tested at trial. It would be incorrect, for summary judgment purposes, to treat that assertion as conclusive.
[25] The Culls have not attempted to justify the report by Dwell Healthy Homes Ltd of January 2011 and the letter of 1 March 2011. By that, I mean that they have not tried in this application to prove that the report was factually correct. They have instead tried to shift the burden of proof by suggesting that in this application it is for the plaintiffs to prove its falsity. In my judgment that takes a mistaken view as to where the burden of proof lies.
[26] Other triable issues are:
(a) the Edwards’ reliance on the reports; and
(b)whether any elevated moisture levels found in early 2011 were a warning of more serious problems to come. I say that because the Edwards have pleaded the appearance of moisture defects two years later as somehow being proof of the falsity of statements made in
2011. The question in a misrepresentation claim is whether any representations were false at the time they were made. They are not warranties. They are not promises as to a future state of affairs.
[27] Mr Rainey summarised these as the elements in a claim for misrepresentation under s 6:
(a) There must be a misrepresentation. The Contractual Remedies Act does not define “misrepresentation” but it has always been assumed that it carries the meaning that it had under the old law – that is, a statement of past or present fact which is untrue.
(b)The misrepresentation must be made by or on behalf of one party to a contract to another party. With that he adds this: if a person merely passes on a statement made by someone else without endorsing it, they are not making the statement but rather they are a mere conduit for others. He relied on that strongly. I will discuss this further.
(c) The misrepresentation must be made to the plaintiff.
(d)The misrepresentation must have induced the plaintiff to enter into the contract.
(e) Provided the plaintiff establishes these matters, the plaintiff will be entitled to damages as if the representation were a term of the contract.
[28] As to the representation in this case, I put the matter generally – and the matter may be capable of further analysis later on - the cumulative effect of Mr Winter’s report of January 2011, the statements made by the salesman, and the letter of 1 March 2011 was to reassure the Edwards that they need not be concerned about the house at 14A Challenger Street having water ingress issues. It is arguable that they relied on that, and entered into the agreement to purchase as a result of those representations. For present purposes, it is also arguable the statements gave
the Edwards a sense of reassurance and put them under a misapprehension as to the true state of affairs. Whether that is correct or not will be a triable issue.
Were the alleged representations made by or on behalf of the Culls?
[29] Mr Rainey focused primarily on the question whether Mr and Mrs Cull could be held liable for the representations made by the report of January 2011, the letter of
1 March 2011 and the statements made by the real estate salesman.
[30] The opposing positions of the parties can be identified by referring to two passages in Law of Contract in New Zealand.3 The first passage is this:
A party to a contract is liable under s 6 for misrepresentation made by his or her agents… the party’s liability is confined to statements made within the real or apparent authority of his or her agent. If an agent makes a statement which is beyond the authority of such an agent the party will not have it attributed to him or her. It can be a matter of difficulty to decide the ambit of an agent’s authority for this purpose…
[31] Mr Allan for the plaintiffs primarily relies on that. Further down in the same section appears this:
There may at times be difficulty in determining whether a statement has been made “by and on behalf of” the party. If a person merely passes on a statement (for example a valuation) made by someone else without endorsing it, it is arguable that they are not “making” it but rather that they are a “mere conduit” for the other.
[32] Mr Rainey’s submission is that the Culls were never more than a “conduit”. For the Culls to be personally exposed, he says that either of two matters would have to arise. First, the Culls would have to know themselves that the building had water ingress problems and they allowed the report disclaiming any water ingress issues to go ahead. They would be liable then for misrepresentation by stating a half-truth. Second, they would be liable if they actually endorsed the statements made by the independent party. Mr Rainey’s submission is that if neither of those matters is
satisfied then the court should find against the Edwards.
3 John Burrows, Jeremy Finn and Stephen Todd Law of Contract in New Zealand (4th ed, LexisNexis, Wellington, 2012) at [11.2.2].
[33] There is authority to support Mr Rainey’s submission as to “conduit”. A significant decision on which Mr Rainey relied is that of Cooper J in Mainland Products Ltd v BIL (NZ) Holdings Ltd.4 That was a case where purchasers of shares in a company sued the vendor for alleged misrepresentation in financial statements. The financial statements had incorporated values for a pig farm. The pig farm had been valued by registered valuers. The valuation was said to be incorrect because it had failed to identify that by reason of DDT contamination the farm was unsuitable for dairy conversion. Cooper J held that that did not amount to a misrepresentation
on the part of the vendors. He said that the valuation was no more than a statement of opinion by an independent expert and that it was not to be taken as containing any endorsement by the vendors. He relied on a judgment of the Queensland Supreme Court, Lake Koala Pty Ltd v Walker,5 decided under s 52 of the Trade Practices Act
1974 (Cth). There, Connolly J said:6
It was argued for the plaintiff that a vendor cannot, without incurring liability, furnish the reports of experts to prospective purchasers unless they are in fact free of all taint of error and incapable of misleading in any respect. The representation which is made in the case of the mere furnishing of a report, such as that prepared by Peat Marwick in this case, is that the document is what it purports to be, namely the opinion of the expert, and that the vendor believes it to be honestly made and made in the exercise of professional competence or, which amounts to much the same thing, that he has no reason to believe the contrary. cf Smith v Land and House Property Corporation (1884) 28 Ch D 7.
[34] There are similar authorities as to the conduit defence under the Fair Trading Act 1986. It is my understanding that the courts have adopted the conduit defence under the Fair Trading Act in reliance on similar principles applied in the case of contractual misrepresentation decided at common law and in equity.
[35] Against that, Mr Allan says that it is wrong to categorise Dwell Healthy Homes Ltd as simply an independent expert invited to supply a report. He says that its role went much deeper than that. He characterises Dwell Healthy Homes Ltd as part of a strategic plan for the sale of property. The company was engaged for the
express purpose of providing information which could be made available to potential
4 Mainland Products Ltd v BIL (NZ) Holdings Ltd HC Auckland CIV-2002-404-1889, 8 June
2004.
5 Lake Koala Pty Ltd v Walker [1991] 2 Qd R 49.
6 At 58.
purchasers of the property to assess whether they should buy the property or not. He submits that Dwell Healthy Homes Ltd was just as much an agent of the Culls in selling the property as Unlimited Potential. He submitted that the case was comparable to the Culls engaging two land agents for the sale of the property – one to front to the potential purchasers and the other (if you like) to provide “back office” information in support, together comprising a team to market the property.
Mr Allan also drew support from the decision of Humphries v Edinborough.7 That
was a case where a land agent made oral representations to purchasers that assured them that an apartment, and the apartment complex, did not have water ingress issues. The vendor’s summary judgment application failed at first instance, and also on appeal to the Court of Appeal. While the representations in Humphries and in this case differed somewhat, Mr Allan submitted that both were directed at reassuring interested purchasers that there was no significant issue with water ingress. Both were made by agents in the course of bringing about a sale of a property.
[36] For this case, it is arguable for the Edwards that Dwell Healthy Homes Ltd had gone beyond being the disinterested expert invited to supply information, and had become part of the sales force, that is, an agent of the Culls. I am inclined to take that view by reason of the concluding statements in Mr Winter’s letter of
1 March 2011. He attacks the competence of Mr Underwood of Able Inspection Ltd. I accept Mr Allan’s submission that he had become, by this stage, an advocate. He professed concern that the parties involved with this sale and purchase had become upset. In other words, the role he had taken on was to smooth away difficulties between parties trying to come to an agreement for sale and purchase. His conduct was directed at encouraging the Edwards to attend the auction and bid. On that basis, Mr Winter and his company were no longer simply disinterested experts supplying information at the request of the vendors, but had become part of the sales force.
[37] That matter is also reinforced by the statements made by the salesman in his email of 2 March 2011. The salesman has recorded Mr Cull as saying that, before speaking to his builder, he was open to the walls being opened for further inspection
but, having had his builder inspect, he was convinced that there were no issues. That
7 Humphries v Edinborough [2010] NZCA 416.
is open to the submission that by accepting what his builder has said, he has endorsed it through the salesman, who has passed that information on to the Edwards with a view to easing their concerns. Therefore, it is my view that it remains arguable for the Edwards that Dwell Healthy Homes Ltd, as well as Unlimited Potential, were acting as agents within their authority in making the representations relied on by the Edwards.
Were the reports only statements of opinion?
[38] There is one other matter to deal with. In their application the Culls also alleged that the statements relied on by the Edwards were no more than statements of opinion. In submissions, Mr Rainey put this on the basis that the Culls, not being expert in these matters, had an honest belief in the information being passed to the Edwards.
[39] I follow the test laid down by Bowen LJ in Smith v Land and House Property
Corporation:8
It is material to observe that it is often fallaciously assumed that a statement of opinion cannot involve the statement of a fact. In the case where the facts are equally well known to both parties, what one of them says to the other is frequently nothing but an expression of opinion. The statement of such opinion is in a sense a statement of a fact, about the condition of the man’s own mind, but only of an irrelevant fact, for it is of no consequence what the opinion is. But if the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion.
[40] That dictum has generally been followed in most cases which have had to consider the distinction between establishing whether a representation is purely a matter of opinion or whether it also incorporates representations of fact.
[41] I also refer to the decision of McGechan J in Shotover Mining Ltd v Brownlie.9 I have considered his survey of the cases going both ways on this topic. Once it is arguable that the Culls are bound by the reports made by Dwell Healthy
Homes Ltd, then those statements bind them as having been made by Dwell Healthy
8 Smith v Land and House Property Corporation (1884) 28 Ch D 7 at 15.
9 Shotover Mining Ltd v Brownlie HC Invercargill CP96/86, 30 September 1987.
Homes Ltd within its authority as their agent. It is then a matter of establishing whether those statements do amount to representations of fact. The report of January
2011 and the letter of 1 March 2011 do contain pure statements of fact, namely, what Mr Winter found on his inspection of the premises. Insofar as Mr Winter is concerned, he goes further and expresses a view as to whether the property is likely to suffer water ingress problems. He is in the class of a person who has more knowledge or more expertise than the Edwards. It is not a case where the facts are equally known to both parties. Within the dictum of Bowen LJ, Mr Winter can be taken to be saying that there is a factual basis justifying his position. Whether there was such a factual basis will be a trial issue.
[42] In the end, Mr Rainey did not push the opinion submission far. For this decision the more important matter is whether the statements were made by or on behalf of his clients.
Outcome
[43] I find that, notwithstanding the matters raised by Mr and Mrs Cull, the Edwards have an arguable case against Mr and Mrs Cull for misrepresentation under s 6 of the Contractual Remedies Act. I dismiss the summary judgment application.
[44] I award the plaintiffs costs on the summary judgment application alone on a
2B basis. I am confident that counsel will be able to calculate 2B costs, but leave is reserved to file memoranda if they are not able to agree.
…………………………………..
Associate Judge Bell
2
0