Humphries v Edinborough - [2010] NZCA 416

IN THE COURT OF APPEAL OF NEW ZEALAND
CA762/2009
[2010] NZCA 416
BETWEENCLIFFORD HUMPHRIES AND DOREEN HUMPHRIES AS TRUSTEES OF THE C AND D HUMPHRIES FAMILY TRUST

Appellants

ANDMARTIN PHILLIP EDINBOROUGH AND SHARON MARGARET EDINBOROUGH AS TRUSTEES OF THE EDINBOROUGH FAMILY TRUST

Respondents

Hearing:22 June 2010

Court:William Young P, Heath and Allan JJ
Counsel:K G Davenport for Appellants

D R Tobin for Respondents

Judgment:15 September 2010 at 11 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellants must pay the respondents’ costs for a standard appeal on a band A basis and usual disbursements.

REASONS OF THE COURT
(Given by Allan J)

[1]        The Nautilus is a multi-storey apartment complex situated on the beach at Orewa. Mr and Mrs Humphries (the vendors) are the owners of apartment 408.
[2]        In September 2008 they entered into an agreement to sell the apartment to Mr and Mrs Edinborough (the purchasers). Settlement was due to take place on 5 February 2009.
[3]        On 28 January 2009 the purchasers, via their solicitors, gave notice of cancellation on the basis of an alleged pre-contractual misrepresentation as to weathertightness made by Ms Adams, a real estate agent instructed by the vendors. The vendors did not accept the purported cancellation. They issued proceedings in the High Court and applied by way of summary judgment for a decree of specific performance. In a judgment delivered on 13 November 2009 Associate Judge Sargisson dismissed the application.[1] The vendors now appeal against that decision.
Summary judgment principles
[1]Humphries v Edinborough HC Auckland CIV-2009-404-3735, 13 November 2009.
[4]        Rule 12.2 of the High Court Rules provides:
Judgment when there is no defence or when no cause of action can succeed
(1)The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular cause of action.
(2)The court may give judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in the plaintiff's statement of claim can succeed.

[5] A useful synopsis of the Court’s approach to summary judgment applications, which although decided under the old High Court Rules is still applicable, appears in the judgment of this Court in Jowada Holdings Ltd v Cullen Investments Ltd:[2]
In order to obtain summary judgment under Rule 136 of the High Court Rules a plaintiff must satisfy the Court that the defendant has no defence to its claim. In essence, the Court must be persuaded that on the material before the Court the plaintiff has established the necessary facts and legal basis for its claim and that there is no reasonably arguable defence available to the defendant. Once the plaintiff has established a prima facie case, if the defence raises questions of fact, on which the Court’s decision may turn, summary judgment will usually be inappropriate. That is particularly so if resolution of such matters depends on the assessment by the…

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 Humphries v Edinborough

Details

AGLC: Humphries v Edinborough [2010] NZCA 416
Case: [2010] NZCA 416
Decision Date: 15 September 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appeal by the Humphries, who are the owners of apartment 408 in the Nautilus complex, against the decision of the High Court was dismissed. The appeal related to a sale and purchase agreement for apartment 408 between the Humphries and the Edinboroughs. The Edinboroughs had cancelled the agreement, claiming that they were misled about the weathertightness of the Nautilus complex. The Court was required to decide whether the Edinboroughs had a tenable defence to the claim for specific performance.

The Court of Appeal found that the Edinboroughs had a tenable defence. The Court held that the alleged representations by the real estate agent, Ms Adams, could be reasonably construed as statements of fact, rather than opinions or puffery. The Court concluded that the language attributed to Ms Adams could arguably justify the Edinboroughs' cancellation of the agreement. The Court held that the key issue was whether there were problems with the weathertightness of the Nautilus at the time of the alleged representations. The Court found that it was open to the Edinboroughs to rely on the representations, and the dispute should be resolved at trial. The appeal was dismissed, and the Edinboroughs were awarded costs.

Orders