Pegasus Town Ltd v Draper - [2011] NZCA 140

IN THE COURT OF APPEAL OF NEW ZEALAND

CA139/2010
[2011] NZCA 140

BETWEEN PEGASUS TOWN LIMITED
Appellant

AND ANDREW ROGER DRAPER AND CHIANG CHUN CHIN
Respondents

Hearing: 28 March 2011

Court: Stevens, Keane and Fogarty JJ

Counsel: D M Lester for Appellant
N Till QC and N Pointer for Respondents

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.

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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…

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 Pegasus Town Ltd v Draper

Details

AGLC: Pegasus Town Ltd v Draper [2011] NZCA 140
Case: [2011] NZCA 140
Decision Date: 8 April 2011

CaseChat Overview and Summary

Pegasus Town Ltd appealed against the decision of French J of the High Court who had granted summary judgment to the respondents, Andrew Draper and Chiang Chun Chin, confirming their right to cancel an agreement for sale and purchase of property with the appellant. The respondents had purchased land in the Mapleham development in April 2007, but later sought to cancel the agreement on the grounds of misrepresentation and misleading and deceptive conduct, having learned of a proposal by Transit New Zealand to construct a bypass near their property between June and September 2007. The Court of Appeal dismissed the appeal and upheld the grant of summary judgment by the High Court. The Court of Appeal found that the essential facts were not in dispute and that the Judge’s conclusion that the parties expressly or impliedly agreed that the truth of the representation was essential to the respondents was supported by evidence. The Court of Appeal also found that the Judge’s conclusion that the facts were so clear-cut that it could be said with the degree of certainty required for summary judgment that s 4 would apply was appropriate on the facts. The Court of Appeal found that the relief granted to the respondents was justified and not an inappropriate exercise of the discretion under s 9 of the Act. The Court of Appeal concluded that the orders made by the Judge in reliance on the Act were entirely justified and dismissed the appeal. The respondents were entitled to costs for a standard appeal on a band A basis plus the usual disbursements.

Orders