Geraghty v Sutherland - [2013] NZHC 3011

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-004237 [2013] NZHC 3011

UNDER the District Courts Act 1947 and Part 20 of the High Court Rules

BETWEEN ARLENE LORETTA GERAGHTY Appellant

ANDKELLY JOSEPH SUTHERLAND, DOMINIQUE PATRICIA SUTHERLAND AND BENJAMIN JAMES SHAW (as Trustees of the SUTHERLAND FAMILY TRUST) Respondents

Hearing: 11 November 2013

Counsel: Appellant in person
C Matsis for Respondents

Judgment: 14 November 2013

JUDGMENT OF COLLINS J

Introduction

[1] Ms Geraghty appeals a judgment of Judge S E Thomas delivered on 26 July

2013.

[2] Judge Thomas substantially found for the trustees of the Sutherland Family Trust (the Sutherlands) who sued Ms Geraghty for misrepresentations made either by Ms Geraghty or her real estate agent when she sold the Sutherlands her former home in Raumati Beach (the property).

[3] Judge Thomas found Ms Geraghty was liable for:

GERAGHTY v SUTHERLAND [2013] NZHC 3011 [14 November 2013]

(1)misrepresentations relating to the roof of the property. Ms Geraghty was found liable to pay the costs incurred by the Sutherlands when they repaired the roof. Those repairs cost the Sutherlands $18,865.13.

(2) misrepresentations relating to the swimming pool at the property.

Ms Geraghty was required to pay the estimated cost of repairs to the swimming pool, namely $10,230.

[4] Ms Geraghty says Judge Thomas was wrong to find her liable for misrepresentations because she maintains she did not make any misrepresentations. Ms Geraghty also challenges the amount she should have to pay the Sutherlands because she says the amount she has been ordered to pay includes an element of betterment, that is, the new roof and proposed pool repairs are above and beyond what is necessary.

Leave to appeal

[5] Ms Geraghty may require leave to appeal because although her notice of appeal was filed within time, it was not served on the Sutherlands’ solicitors within the prescribed time.1

[6] Ms Geraghty has explained that when she filed her notice of appeal she asked if she needed to do anything else. She received an assurance from court staff that nothing further was required.

[7] I propose to grant Ms Geraghty leave to bring her appeal out of time. [8] Thus, I shall assess the merits of Ms Geraghty’s appeal.
Principles governing this appeal

[9] As Ms Geraghty wishes to pursue a general appeal, I apply the principles articulated by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.2
Those principles are:

(1) I must make my own assessment of the merits of the parties’ cases.

(2) Ms Geraghty bears the onus of satisfying me I should differ from

Judge Thomas’s conclusions.

(3)It is only if I consider Judge Thomas was wrong that I am justified in interfering with her judgment.

(4)If my view is different from the conclusions of Judge Thomas, then her decision is wrong in the only sense that matters, even if it is a conclusion upon which minds might reasonably differ.

(5) In such circumstances I should not defer to Judge Thomas’s assessment…

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.

Keep reading for free

Create a free CaseChat account to read Geraghty v Sutherland and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NZHC 3011
Decision Date: 14 November 2013

CaseChat Overview and Summary

Arlene Loretta Geraghty appeals a decision of the District Court which found her liable for misrepresentations made either by her or her real estate agent, Ms Randall, when she sold her former home in Raumati Beach to Kelly Joseph Sutherland, Dominique Patricia Sutherland, and Benjamin James Shaw (the Sutherlands). The Sutherlands sued Geraghty for misrepresentations relating to the roof of the property and the swimming pool. Judge Thomas found Geraghty liable for the misrepresentations and ordered her to pay the Sutherlands $18,865.13 for repairs to the roof and $10,230 for repairs to the pool. Geraghty argues that she did not make any misrepresentations, that the Sutherlands' claim contains an element of betterment, and that she is not liable for Ms Randall's statements. The court assesses the merits of Geraghty's appeal and concludes that she is liable for the misrepresentations made by her agent, Ms Randall, who acted within her apparent authority. The court finds that Geraghty cannot avoid her liabilities to the Sutherlands because she cannot be held responsible for Ms Randall's failure to discharge her responsibilities as a real estate agent. Geraghty's appeal is dismissed, and the Sutherlands are entitled to costs on a scale 2B basis.

Orders