Kipling v Van Kan - [2012] NZCA 163

IN THE COURT OF APPEAL OF NEW ZEALAND

CA130/2011
[2012] NZCA 163

BETWEEN GLENN KIPLING AND KAREN JANINE WHITE AND RODNEY THOMAS WHITE
Appellants

AND HENDRIK VAN KAN AND WILHELMINA VAN KAN SEEGERS
Respondents

Hearing: 22 March 2012

Court: Harrison, White and Asher JJ

Counsel: L Herzog for Appellants
A M Swan for Respondents

Judgment: 30 April 2012 at 2.30pm

JUDGMENT OF THE COURT

AThe appeal is allowed in part.
BThe summary judgment entered against the appellants in the High Court in the sum of $57,311.69 is set aside.
C The order for costs and disbursements made in the High Court is set aside.
DSummary judgment is entered against the appellants in the sum of $4,046.60.
ESubject to order D, the claim by the respondents is remitted to the District Court for a fixture to be allocated for a fully defended hearing.
FThe respondents are ordered to pay the appellants costs for a standard appeal on a band A basis together with usual disbursements. Costs and disbursements in the High Court are to be fixed by that Court if the parties are unable to agree.

REASONS OF THE COURT
(Given by White J)

Table of Contents

Para No

Introduction  [1]
Factual background [7]
High Court judgment  [25]
The issues of appeal  [29]
Misrepresentation?  [37]
Substantial reduction of benefit or substantially different benefit?                 [41]
Misleading or deceptive conduct?  [44]
Affirmation?  [45]
Summary[49]
Result[51]

Introduction

Glenn Kipling, Karen White and Rodney White (the guarantors) appeal against a High Court summary judgment entered against them jointly and severally in the sum of $57,311.69.[1]
[1] Van Kan v Kipling HC Auckland CIV-2010-404-6799, 23 February 2011.
Hendrik Van Kan and Wilhelmina Van Kan Seegers (the Van Kans) satisfied the High Court that the guarantors had no arguable defence to the Van Kans’ claim against them as guarantors of the obligations of a company called Brave Design Ltd (Brave Design) under a lease of premises at 1/94 Henderson Valley Road, Henderson (the premises).
The High Court Judge, Venning J, rejected the guarantors’ argument that they had an arguable defence because Brave Design had been entitled to cancel the lease as a result of a misrepresentation by the Van Kans relating to the use of a right-of-way adjacent to an access way beside the premises. Adopting “a robust approach”, Venning J was satisfied that no actionable misrepresentation was established on the evidence and that, even if there had been a misrepresentation, it could not have substantially reduced the benefit of the contract or have made the benefit substantially different from that represented. Venning J was also satisfied that Brave Design had affirmed the lease with knowledge of any breach and therefore lost the right to cancel.
The application for the summary judgment was made and determined in the High Court rather than in the District Court because an application by Brave Design to set aside a statutory demand by the Van Kans for Brave Design’s unpaid rent for the premises had already been dismissed by…

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: [2012] NZCA 163
Decision Date: 30 April 2012

CaseChat Overview and Summary

In the case of Kipling v Van Kan, the Court of Appeal of New Zealand considered an appeal by the guarantors, Glenn Kipling, Karen White, and Rodney White, against a High Court summary judgment entered against them jointly and severally in the sum of $57,311.69. The Van Kans, Hendrik Van Kan and Wilhelmina Van Kan Seegers, had obtained the summary judgment as guarantors of the obligations of a company called Brave Design Ltd (Brave Design) under a lease of premises at 1/94 Henderson Valley Road, Henderson (the premises). The High Court Judge, Venning J, rejected the guarantors' argument that they had an arguable defence because Brave Design had been entitled to cancel the lease as a result of a misrepresentation by the Van Kans relating to the use of a right-of-way adjacent to an access way beside the premises.

The Court of Appeal found that there were real doubts or uncertainties between the parties as to Brave Design's ongoing use of the land adjacent to the right-of-way to 94A Henderson Valley Road for both parking and workspace purposes. The court disagreed with Venning J that it was "inherently improbable" that the Van Kans would have represented that Brave Design could continue to use the right-of-way for access purposes and the land adjacent to the right-of-way for parking and workspace purposes in 2006. The Court found that the issue of whether there was a misrepresentation needed to go to trial. The appeal was allowed in part, and the summary judgment entered against the guarantors in the High Court in the sum of $57,311.69 was set aside. Summary judgment was entered against the appellants in the sum of $4,046.60. Subject to that order, the claim by the respondents was remitted to the District Court for a fixture to be allocated for a fully defended hearing. The respondents were ordered to pay the appellants costs for a standard appeal on a band A basis together with usual disbursements. Costs and disbursements in the High Court were to be fixed by that Court if the parties were unable to agree.

Orders