| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA139/2010 [2011] NZCA 140 |
| BETWEEN PEGASUS TOWN LIMITED |
| AND ANDREW ROGER DRAPER AND CHIANG CHUN CHIN |
| Hearing: 28 March 2011 |
| Court: Stevens, Keane and Fogarty JJ |
| Counsel: D M Lester for Appellant |
| Judgment: 8 April 2011 at 4.00 pm |
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe appellant must pay the respondents’ costs for a standard appeal on a band A basis plus usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Introduction
This is an appeal against a judgment of French J in the High Court[1] granting summary judgment to the respondents, Andrew Draper and Chiang Chun Chin, upholding their right as purchasers to cancel an agreement for sale and purchase of property with the appellant. The respondents acquired the land, part of the Pegasus Town and Mapleham Golf Course development near Christchurch (the development), in April 2007. But subsequent to learning of a proposal by Transit New Zealand to construct a bypass near their property between June and September 2007, the respondents took steps to cancel the agreement on the grounds of misrepresentation and misleading and deceptive conduct.
[1] Draper v Pegasus Town Ltd HC Christchurch CIV-2008-009-3832, 17 February 2010.
Proceedings were issued seeking confirmation of the right to cancel and return of the deposit under the Contractual Remedies Act 1979 (the Act) and similar relief under the Fair Trading Act 1986 (the FT Act). The respondents successfully applied for summary judgment in respect of both causes of action. The Judge made orders confirming the respondents’ right to cancel and for the return of the deposit of $86,250 together with interest.[2]
[2] At [69].
The appellant, the developer of the Pegasus Town complex, appeals against the grant of summary judgment. Three main points are advanced. First, that the Judge wrongly found that the truth of the representations made by the agents of the developer were essential to the respondents, this being an issue that is not apt for determination at summary judgment. Second, the Judge wrongly found that the purchasers had relied on the statements of the agents during the negotiation process, particularly given the presence of clauses in the agreement purporting to preclude a court from inquiring into the question of reliance. Third, the Judge ought to have declined to grant relief under s 9 of the Act.
Factual background
The essential facts are not in dispute. The respondents are a married couple who have been residing overseas. On 24 March 2007, they attended an exhibition in Hong Kong organised by Colliers International promoting the development, as they were interested in buying a building lot on the golf course. The respondents discussed the available lots with the agent and took away a package of promotional material that included the following statements:
Mapleham, which forms a landmark entranceway to the town, will offer the very best of lifestyle living.
Rural setting with extensive planting of mature…
Continue reading Pegasus Town Ltd v Draper
Sign in free to access the full text
- AGLC
- Pegasus Town Ltd v Draper [2011] NZCA 140
- Case
- [2011] NZCA 140
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.