Little v Warwick - [2019] NZHC 822

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2748

[2019] NZHC 822

BETWEEN ANDREA LOUISE LITTLE and SDM TRUSTEE COMPANY LIMITED
Plaintiffs

AND

RODNEY STEPHEN WARWICK and SALLY JOAN MACFARLANE WARWICK

Defendants

Hearing: 19 October 2018

Appearances:

G R Grant and M C Frogley for the Plaintiffs W McCartney for the Defendants

Judgment:

15 April 2019

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 15 April 2019 at 11.00am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:
Rainey Law, Auckland
T S Carnachan, Auckland W McCartney, Auckland

LITTLE v WARWICK [2019] NZHC 822 [15 April 2019]

[1] The defendants apply for summary judgment on the plaintiffs' claims against them.

Background

[2] The case arises out of an agreement for sale and purchase dated 27 November 2011 (the Agreement), under which the plaintiff Andrea Little (or nominee) agreed to purchase a residential property in Brookfield Street, St Heliers (the property) owned by a trust associated with the defendants (Mr and Mrs Warwick). The trust was the Rod and Sally Warwick Family Trust (the Trust), and its sole trustee, R & S Warwick Trustee Company Limited, was the registered proprietor of the property

[3] The Agreement provided for the purchaser to obtain a building report and a LIM report, although the real estate agent acting for the vendor had already provided a LIM report to the solicitors acting for Ms Little. Ms Little obtained a building survey report from a company called Dwell Healthy Homes Limited (the Dwell report) on 29 November 2011, and on 1 December 2011 she instructed her solicitor to declare the agreement unconditional. Settlement was completed on 13 January 2012.

[4] Ms Little says that, in August 2017, she learned that the house on the property (the dwelling) is leaking. She obtained expert advice, and was told that extensive repairs would be necessary, including a full re-clad.

[5] Ms Little and her nominated co-purchaser, SDM Trustee Company (2007) Limited (SDM), commenced the present proceeding in November 2017. They contend that certain misrepresentations were made by or on behalf of Mr and Mrs Warwick, and that Ms Little was induced by those misrepresentations to enter into the Agreement.

[6] The plaintiffs say that the misrepresentations were made either deceitfully by Mr and Mrs Warwick, or that they constituted negligent misrepresentations. In either event, they say that Mr and Mrs Warwick are liable to them for damages currently estimated at $500,759, plus consequential losses to be particularised before trial. They also seek an award of general damages in the sum of $25,000 or such other sum as the Court might deem just.

[7] The vendor under the Agreement, R & S Warwick Trustee Company Ltd, has not been joined as a defendant. The Trust was wound up after the sale to the plaintiffs, and R & S Warwick Trustee Company Limited was removed from the Register of Companies on 15…

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 Little v Warwick

Details

AGLC: Little v Warwick [2019] NZHC 822
Case: [2019] NZHC 822
Decision Date: 15 April 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiffs, Andrea Louise Little and SDM Trustee Company Limited, sought damages from the defendants, Rodney Stephen Warwick and Sally Joan MacFarlane Warwick, for misrepresentations made in relation to the sale of a residential property. The defendants applied for summary judgment, arguing that the plaintiffs' claims could not succeed. The court considered several issues, including whether the defendants made any representations, whether they were merely conduits of information, whether they had reason to believe the representations were incorrect, and whether it was reasonable for the plaintiffs to rely on the representations. The court found that these issues were not suitable for summary determination and denied the defendants' application for summary judgment. The case will proceed to trial to determine the merits of the plaintiffs' claims. The court also directed the parties to schedule a telephone conference for future directions.

Orders