Mason v Magee - [2018] NZSC 11

IN THE SUPREME COURT OF NEW ZEALAND

SC 128/2017
[2018] NZSC 11

BETWEEN	STEVEN PHILIP MASON AND KATHARINE MARY MASON Applicants
AND	ANDREW HAMILTON MAGEE AND SHARON LEE MAGEE Respondents

Court:	Glazebrook, OʼRegan and Ellen France JJ
Counsel:	D J S Parker and J T Wollerman for Applicants M Freeman for Respondents
Judgment:	9 February 2018

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B The applicants are to pay the respondents costs of $2,500.
____________________________________________________________________

REASONS

Introduction

The applicants, Steven Mason and Katharine Mason, bought a home from the respondents, Andrew Magee and Sharon Magee. The Masons subsequently found the home was not weathertight. They brought a claim for damages in the High Court based on what they said were pre‑contractual misrepresentations by the Magees about the home’s weathertightness. Williams J found in favour of the Masons.[1] The Magees successfully appealed to the Court of Appeal.[2] The Masons now seek leave to appeal to this Court.

Background

[1]Mason v Magee [2017] NZHC 51.

[2]Magee v Mason [2017] NZCA 502 (Miller, Courtney and Gendall JJ) [Magee (CA)].

The background is set out in full in the Court of Appeal judgment.[3] For present purposes, we need only note that the Masons’ claim was based on two representations. Both of the relevant statements were made by Mrs Magee about two months before the parties entered into an agreement for sale and purchase of the property. The context of both representations was informal. The first statement was made at a dinner party in late October 2011 in response to a question from the Magees’ neighbour. The second statement was made the next day when the Masons visited the Magees’ home.[4]
[3]At [7]–[20].
[4]At that time, the Masons had a conditional contract to buy another home but had expressed interest in the Magees’ property.
On both occasions, Mrs Magee responded “No” when asked whether the home was leaky. On the second occasion, Mrs Mason’s evidence was that Mrs Magee told her that the house was not leaky and that they had “never had any issues with” the house.
The other factual matter we should note is that the Masons obtained a building report on the property prior to the contract with the Magees becoming unconditional. The agreement for sale and purchase between the parties was conditional on the Masons obtaining a building report satisfactory to them. They duly obtained a report which identified some minor matters. As the Court of Appeal noted:[5]
The evidence was that Mrs Mason found the [building] report equivocal and pressed [the report writer] on whether the property was a leaky home. He replied “no”. She stated that he had been very confident about the house, saying it required only a brief inspection, and she had trusted him. In response to questions from the Court, Mr Mason accepted that the [building] report was the way in which the Masons meant to confirm for themselves that there were no weathertightness issues.
[5]

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 Mason v Magee

Details

AGLC: Mason v Magee [2018] NZSC 11
Case: [2018] NZSC 11
Decision Date: 9 February 2018

CaseChat Overview and Summary

Steven Mason and Katharine Mason, the applicants, sought damages from Andrew Magee and Sharon Magee, the respondents, based on alleged pre-contractual misrepresentations about the weathertightness of a property the applicants purchased from the respondents. The applicants contended that the respondents had represented that the property was not leaky, which induced them to enter into the contract. The Court of Appeal had previously dismissed the applicants' claim, and the applicants now sought leave to appeal to the Supreme Court of New Zealand.

The legal issues before the Court were whether the proposed appeal raised any questions of general or public importance or of general commercial significance, and whether there was an appearance of a miscarriage of justice. The applicants argued that the Court of Appeal had erred in its interpretation of the pre-contractual representations, and that the meaning adopted by Courtney J was correct. The Court needed to determine if the proposed appeal raised issues of general importance or significance, or if it was simply a factual assessment of the meaning of the representations.

The Court found that the proposed appeal did not raise any questions of general or public importance or of general commercial significance. The case turned on a factual assessment of the meaning of the representations, and the approach adopted by the Court of Appeal was a framework for that assessment. The Court also found that there was no appearance of a miscarriage of justice, particularly given the context and the potential impact of the building report. The application for leave to appeal was dismissed, and the applicants were ordered to pay the respondents' costs of $2,500.

Orders