Janes v Benney - [2019] NZHC 1911

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-0580

[2019] NZHC 1911

UNDER Real Estate Agents Act 2008

IN THE MATTER

Of an agreement for sale and purchase of real estate

BETWEEN

KIM EMILY JANES

First Plaintiff

JADE PAUL VATSELIAS
Second Plaintiff

AND

MARGARET BENNEY

First Defendant

Continued over page…

Hearing: 5 August 2019

Appearances:

K J Sheehan for the Plaintiffs

No appearance for First Defendant
C R Andrews and K T O’Halloran for the Second and Third Defendants
No appearance for the Fourth Defendant

Judgment:

5 August 2019

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
K J Sheehan, Kate Sheehan Lawyers, Auckland
C R Andrews and K T O’Halloran, McVeagh Fleming, Auckland B R Webster, Morgan Coakle, Auckland

JANES v BENNEY [2019] NZHC 1911 [5 August 2019]

DAN REED
Second Defendant
UNLIMITED POTENTIAL LIMITED
Third Defendant
SANDI ANDERSON
Fourth Defendant

[1]In this vendor-purchaser case there are summary judgment applications:

(a)The plaintiffs, one of them the vendor, apply for summary judgment against the first defendant as purchaser.

(b)The plaintiffs seek judgment against the second defendant, a real estate salesperson.

(c)The plaintiffs sue the third defendant as the real estate agency that acted on the sale to the first defendant.

(d)The plaintiffs apply for judgment against the fourth defendant, the conveyancing lawyer who acted for the first plaintiff on the sale to the first defendant and acted for both plaintiffs on the purchase of another property.

(e)The second defendant, the real estate salesperson, applies for judgment against the first plaintiff and against the second plaintiff.

(f)The third defendant applies for judgment against the first plaintiff and the second plaintiff.

(g)The third defendant has filed a counterclaim and applies for summary judgment against the first plaintiff on the counterclaim.

There are then five plaintiffs’ applications and four defendants’ applications for summary judgment.

[2] I do not need to deal with the plaintiffs’ application for summary judgment against the fourth defendant. By a joint memorandum the parties advised that the plaintiffs had withdrawn their summary judgment application against the fourth defendant. That claim will go through the normal steps for a full defended hearing. There may be a question of costs on the application against the fourth defendant, but I am not required to decide that today. All the other summary judgment applications remain alive.

[3] It will be necessary to go into some of the circumstances in greater detail, but I will first give a summary. In 2018, the first plaintiff, Kim Janes, owned a cross-lease property at 2/34 Clifton Road, Herne Bay, Auckland. The second plaintiff, Jade Paul Vatselias, is her partner. She was pregnant and with the increase in the family they wanted a larger place to live. She listed the property with the third defendant, Unlimited Potential Limited, a licensed real estate agent. Mr Dan Reed, the second defendant, is the salesman who took the listing and obtained a sale of the property. Ms Sandi Anderson, 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 Janes v Benney

Details

AGLC: Janes v Benney [2019] NZHC 1911
Case: [2019] NZHC 1911
Decision Date: 5 August 2019

CaseChat Overview and Summary

The case of Janes v Benney involves multiple summary judgment applications concerning a failed real estate transaction. Kim Janes, the vendor, and Jade Vatselias, her partner, were the plaintiffs. The first defendant, Margaret Benney, was the purchaser who failed to complete the sale. The second defendant, Dan Reed, was the real estate salesperson, and the third defendant, Unlimited Potential Limited, was the real estate agency. The fourth defendant, Sandi Anderson, was the conveyancing lawyer. The plaintiffs sought damages for breach of contract and misrepresentation against Benney, Reed, and Unlimited Potential. Reed and Unlimited Potential sought summary judgment against the plaintiffs. Unlimited Potential also filed a counterclaim for commission.

The court dismissed the plaintiffs' application for summary judgment against Reed, as he had an arguable defence based on his status as an independent contractor. The plaintiffs' application against Unlimited Potential was also dismissed, as there were arguable defences concerning the collection of the deposit and notification of non-payment. The court granted the plaintiffs summary judgment against Benney for breach of contract, awarding damages of $267,956.25. However, the court reserved the question of additional damages for later determination.

The court dismissed Reed's and Unlimited Potential's applications for summary judgment against Vatselias, as he had no direct contractual relationship with them. The court also dismissed Unlimited Potential's application for summary judgment on its counterclaim for commission, as the plaintiffs had arguable claims against it. The court ordered a case management conference and set deadlines for discovery and statements of defence.

Orders