Miles v Gadd - [2021] NZHC 1527

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-349

[2021] NZHC 1527

BETWEEN
DANIEL JOSEPH MILES AND

ELIZABETH CHARLOTTE MILES
Plaintiffs

AND

BRUCE WILLIAM GADD

Defendant

Hearing: 16–18 and 24 November 2020

Appearances:

B M Easton and D J Powell for Plaintiffs K P Sullivan and D Bleier for Defendant

Judgment:

25 June 2021

JUDGMENT OF CLARK J

Introduction[1]

The issues[4]

Factual background[6]
Events prior to sale of apartment 803[29]

Events post-purchase[50]

The statement of claim[67]
Did Mr Gadd breach cl 6.2(5)?[71]
Plaintiffs’ position[71]
Defendant’s position[75]

Analysis[80]

Conclusion[107]
Did Mr Gadd breach cl 8.2(6)?[108]
Plaintiffs’ position[108]
Defendant’s position[110]

Operative principles[111]

Alleged knowledge[118]
What does the evidence show Mr Gadd knew?[124]
Did Mr Gadd’s knowledge fall within cl 8.2(6)?[150]
Summary of scope of cl 8.2(6) and Mr Gadd’s knowledge[177]

Conclusion[180]

Result[181]

MILES AND MILES v GADD [2021] NZHC 1527 [25 June 2021]

Introduction

[1] Construction of the Sirocco residential apartment building in Church Street, in central Wellington, was completed in 1999. The defendant, Mr Gadd, acquired unit 803 in October 2004 and owned it until 28 June 2013 when he sold the unit to the plaintiffs, Mr and Ms Miles. The sale and purchase agreement contained two warranties by which Mr Gadd, as the vendor, warranted that:

(a)building consent had been obtained in respect of any work done on the property that required building consent; and

(b)he had no knowledge or notice of any fact which might give rise to or indicate the possibility of Mr and Ms Miles incurring liability under the Unit Titles Act 2010 (UTA).

[2] In May 2014, consulting engineers reported that the monolithic cladding system had failed. In June 2019 the plaintiffs commenced these proceedings. They sue for breach of both warranties. The plaintiffs say Mr Gadd carried out tiling work to the deck of unit 803 without first obtaining building consent. They also contend Sirocco had a chequered history of building defects including weathertightness issues and these problems continued up to the time that Mr Gadd entered into the sale and purchase agreement. It is said that, by virtue of owning the unit for over eight and a half years, and through various Body Corporate documents, Mr Gadd had knowledge or notice of facts indicating the possibility of Mr Gadd or the purchasers incurring liability under the UTA or the possibility of proceedings being issued by or against the Body Corporate.

[3] The plaintiffs seek damages for the diminution in the value of their apartment or for lost opportunity. They also seek general damages.

The issues

[4]The following issues are raised by the pleadings:

(a)whether the tiling work carried out on Mr Gadd’s balcony required a

building consent under the Building Act 2004;

(b)whether Mr Gadd had knowledge or notice of any fact or circumstance that indicated the possibility that either he or a purchaser may incur liability under the UTA or of proceedings being issued by or against the Body Corporate

(c)whether the plaintiffs…

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 Miles v Gadd

Details

AGLC: Miles v Gadd [2021] NZHC 1527
Case: [2021] NZHC 1527
Decision Date: 25 June 2021

CaseChat Overview and Summary

The case of Miles and Miles v Gadd [2021] NZHC 1527 involved the plaintiffs, Mr and Ms Miles, suing the defendant, Mr Gadd, for breach of warranty in relation to the sale and purchase of apartment 803 at Sirocco in Wellington. The plaintiffs sued for breach of two warranties: first, that Mr Gadd had obtained a building consent for tiling work on the deck of the apartment; and second, that Mr Gadd had no knowledge of any fact which might give rise to or indicate the possibility of the plaintiffs incurring liability under the Unit Titles Act 2010. The plaintiffs sought damages for the diminution in the value of their apartment or for lost opportunity, as well as general damages.

The court found that the plaintiffs had not established on the balance of probabilities that a building consent was required for the tiling work, and therefore Mr Gadd did not breach the first warranty. Additionally, the court found that Mr Gadd did not have knowledge or notice of any fact which might give rise to or indicate the possibility of the plaintiffs incurring liability under the Unit Titles Act 2010. Consequently, the plaintiffs failed on both of their causes of action, and the defendant was entitled to costs and reasonable disbursements.

Orders