Grant v Ridgway Empire Ltd - [2018] NZHC 2642

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-1892

[2018] NZHC 2642

BETWEEN
JILL GRANT

Plaintiff

AND

RIDGWAY EMPIRE LIMITED

Defendant

Hearing: 30–31 July, 1 and 3 August 2018

Appearances:

G P Blanchard QC and E E Hill D R Bigio QC and D W Grove

Judgment:

11 October 2018

JUDGMENT OF PALMER J

This judgment was delivered by me on 11 October 2018 at 11:30 a.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Counsel/Solicitors:
GP Blanchard QC, Auckland D R Bigio QC, Auckland
Blackwells, Auckland Quay Law, Auckland

GRANT v RIDGWAY EMPIRE LTD [2018] NZHC 2642 [11 October 2018]

Summary

[1] In 2009, Ms Jill Grant bought a townhouse at 37 Clifton Road, Hauraki, Auckland with a lovely view overlooking the Hauraki Gulf and Takapuna Beach. When purchasing it, she asked the vendor, Mr Aaron Ridgway, whether it was leaky. He said it was not; but it was leaky. Ms Grant claims damages for pre-contractual misrepresentation and breach of a warranty that work Mr Ridgway did on the property had Council consent where required. Mr Ridgway submits there was no misrepresentation or breach of warranty and there is insufficient evidence the damages claimed reflect remediation rather than renovation. He submits he did not need a consent for the work Ms Grant claims was in breach of the warranty.

[2] Mr Ridgway did not know the unit was leaking; only that it had suffered from three water issues he had repaired. But he made a representation of fact to Ms Grant that it did not leak, when it did. That was a pre-contractual misrepresentation which was one of the reasons Ms Grant bought the unit. She acted reasonably in relying on that misrepresentation. Mr Ridgway did not breach the warranty as I do not consider the work he did in 2004 required Council consent. Ms Grant is entitled to damages for the misrepresentation. I award her damages of $474,101 for the misrepresentation on the basis of her builder’s estimate of the cost of repair, which was not challenged by contrary evidence.

What happened?

[3] In 2009, Ms Grant purchased unit four at 37 Clifton Road, Hauraki, Auckland from Mr Ridgway. At trial, Ms Grant called evidence from: her friend Ms Theresa Brooking; her architect Mr John Deed; an expert building surveyor Mr John-Paul Biggelaar; and her builder, Mr Alexander Coburn.1 Mr Ridgway called evidence from: his plumber, Mr Michael Butler; his builder, Mr James Bakker; his tiler, Mr Andrew Williams; an expert building surveyor Mr Jacob Woolgar; and statements from his mother, Mrs Carol Fowke and other residents and former residents of units at 37 Clifton Road.

1 In a minute of 31 July 2018, I ruled some of the evidence in Mr Coburn’s proposed brief inadmissible as it was not reply evidence.

Mr Ridgway’s properties at 37 Clifton Road

[4] There are five connected townhouses on the property at 37 Clifton Road, Hauraki,…

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.

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Details

Case: [2018] NZHC 2642
Decision Date: 11 October 2018

CaseChat Overview and Summary

Jill Grant sued Ridgway Empire Ltd (REL) for pre-contractual misrepresentation and breach of warranty following the purchase of a townhouse in Hauraki, Auckland. The key issues were whether there was a misrepresentation and a breach of warranty, and if so, the appropriate quantum of damages. The court found that Mr Ridgway made a pre-contractual misrepresentation by stating the unit did not leak when it actually did. This was a misrepresentation of fact that induced Ms Grant to enter the contract. On the breach of warranty, the court found that the work done on the property in 2004 did not require a building consent and thus there was no breach. The court awarded Ms Grant damages of $474,101 for the misrepresentation based on her builder’s estimate, which was not challenged. The court declined to award damages for the breach of warranty.

Orders