Edwards v Cull - [2014] NZHC 1556

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 parties

Judgment:

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 Defendant
Edmonds 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…

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 [2014] NZHC 1556
Case: [2014] NZHC 1556
Decision Date: 1 July 2014

CaseChat Overview and Summary

The case of Edwards v Cull involved a claim by the plaintiffs, Mr and Mrs Edwards, against the defendants, Mr and Mrs Cull, for misrepresentation under s 6(1) of the Contractual Remedies Act. The Edwards had purchased a property from the Culls in March 2011 for $1,950,000.00 but later discovered significant water ingress problems, estimating the cost of remediation to be around $750,000.00. The Culls applied for summary judgment, contending that any representations made regarding the property's condition were not their responsibility as they were made by an independent building inspection company, Dwell Healthy Homes Ltd. The court found that it was arguable that Dwell Healthy Homes Ltd had become part of the sales force and that the statements made were not merely opinions but could also be considered representations of fact. The court dismissed the summary judgment application, allowing the misrepresentation claim to proceed to trial.

Orders