Rahopara Farms Limited v Taylor

[2012] NZHC 653

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-4857 [2012] NZHC 653

BETWEEN  RAHOPARA FARMS LIMITED Plaintiff

ANDFIONA ANNE TAYLOR Defendant

Hearing:         5 December 2011

Counsel:         G Harrison for Plaintiff

A McDonald for Defendant

Judgment:      4 April 2012 at 3 pm

RESERVED JUDGMENT OF ASSOCIATE JUDGE SARGISSON (Summary Judgment)

This judgment was delivered by me on 4 April 2012 at 3 pm pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date ..........................

Solicitors:

North Harbour Law, PO Box 104, Orewa

The North Shore Law Practice, PO Box 31-361, Milford

RAHOPARA FARMS LIMITED V FIONA ANNE TAYLOR HC AK CIV-2011-404-4857 [4 April 2012]

[1]      The plaintiff, Rahopara Farms Ltd, applies for summary judgment against Mrs Fiona Taylor, the defendant, on the issue of liability.   It also requests that the Court direct a trial of the issue of quantum pursuant to r 12.3 of the High Court rules.

[2]      The essence of the claim as to liability is that Mrs Taylor is in breach of a warranty as to code compliance in an agreement for sale and purchase.

[3]      The application is opposed.

The claim

[4]      By an agreement in writing dated 4 June 2008 Rahopara Farms agreed to purchase Mrs Taylor’s property of about 8 hectares at 816 Haruru Road, Waitoki, for the sum of $1.1 million.  Included in the sale, and situated on the land was a house of relatively modern construction.

[5]      Materally, clause 6.2 of the agreement contains the following warranty:

The  vendor  warrants  and  undertakes  that  at  the  giving  and  taking  of possession:

...

(5)      Where the vendor has done or caused or permitted to be done on the property any works:

(a)      Any permit, resource consent or building consent required by law was obtained;

(b)      The works were completed in compliance with those permits or consents; and

(c)      Where appropriate a code compliance certificate was issued for those works.

[6] The house was constructed by or on behalf of Mrs Taylor but as at the time of sale no code compliance certificate had been issued for the house and building works under the Building Act 2004.

[7]      Settlement of the sale occurred on 27 June 2008.  Subsequent to settlement

Rahopara Farms sought to obtain a code compliance certificate because weather

tightness and drainage deficiencies were identified.  Significant works were required, which were completed, according to Rahopara Farms, in or about June 2011. A code compliance certificate has now been issued.

[8]      Rahopara Farms claims repair costs of $275,369.71 plus other damages and costs.   It  relies upon  the written terms of the agreement  for sale and purchase including the vendor’s warranty in clause 6.2(5).

The opposition

[9]      Mrs Taylor’s opposition is based on the following defences:

(a)      That the parties’ contract is partly written and partly oral or there is a collateral  oral  contract.    It  is  an  oral  term  that  the  house  was purchased on an ‘as is, where is’ basis and that Rahopara Farms would not rely on the vendor’s warranty contained in clause 6.2(5); and

(b)Alternatively that Rahopara Farms has waived and is estopped from relying on the vendor’s warranty.

[10]     Mrs Taylor asserts that Rahopara Farms purchased her property knowing that the house was only ‘substantially complete’ and that a code compliance certificate had not been issued for it.  She relies on the circumstances in which she entered into an earlier agreement, in 2006, to sell all but 2.9 hectares of her land.   The earlier agreement was made with Highway Stabilizers New Zealand Ltd in connection with an application by Haruru Cleanfill Ltd for resource consent to operate a cleanfill from an adjacent property at 808 Haruru Road.

[11]     The  second  agreement  came  about  when  a  change  of  the  name  of  the purchaser was initiated by Mr J Dillon, a director of Highway Stabilizers and Rahopara Farms.  For ‘tax reasons,’ Rahopara Farms agreed to purchase all of Mrs Taylor’s land including the 2.9 hectares previously set aside.

Background

[12]     Mrs Taylor deposes that in 1991 she and her then husband, Mr Michael Whittaker, bought the property; that he was a builder and built the house in stages; that they lived there with their two children; that the house was never completed; and that Mr Whittaker died in 2001.  Mrs Taylor remarried several years later.

[13]     In 2004 Mr Dillon was a director and shareholder of Highway Stabilizers. Mrs Taylor was aware that Mr Dillon used to practise as a solicitor in Orewa until

1997 when he became a property developer.

[14]     In April 2004 Highway Stabilizers bought 808 Haruru Road as a cleanfill for its roading construction business.   In June 2004 Highway Stabilizers transferred ownership of 808  Haruru Road to Haruru Cleanfill  Limited.   Around  that time Haururu applied for resource consent to operate a cleanfill at that property.

[15]     Mrs Taylor says that as owner of the adjoining property Haururu wanted her agreement to its resource consent application to operate the cleanfill, and that in the later part of 2005 Mr Dillon and a Mr P Boocock had a meeting with her on her back deck.   Mrs Taylor says that the meeting was to discuss solutions involving the purchase of her property by Haururu in conjunction with Haururu’s securing her agreement to its resource consent application for the cleanfill.  Initially she wanted to retain the back 2.9 hectares to redevelop it herself.  The concerns of Mr Dillon and Mr Boocock were to purchase the front 5 hectares to amalgamate the land with the title to 808 Haruru Road in order to create what they said was a ‘buffer zone’ between the cleanfill and adjoining property.

[16]     Mrs Taylor says Messrs Dillon and Boocock were not concerned about the state of the house or the property and that it was not a problem that the house was unfinished.  She says they indicated they would take the house ‘as is, where is’.  She says they did not inspect the house or even look through it; they made no mention of requiring a LIM report or a building report.

[17]     Mrs Taylor says she was a friend of Mr Boocock and trusted the assurances he and Mr Dillon gave that the agreement for purchase would be a straightforward transaction that was intended to secure her agreement to the resource consent application.

[18]     Subsequently Mr Boocock arranged for Mr Morse, a registered valuer, to assess  the  market  value  of  her  property,  excluding  the  rear  2.9  hectares.    The valuation referred to her house as being of ‘relatively modern construction’ though not entirely finished:

The house is in average condition and substantially complete, however some minor  finishing is  required  to  the  interior  including provision  of timber mouldings to certain groans and decoration of the internal doors, ensuite and laundry.

[19]     In early 2006 Mr Dillon wrote offering three options to purchase the property or part of it including the house and on the basis of the valuation.

[20]     Mrs Taylor did not have a solicitor at that time and asked Mr Dillon whom she should consult.  He referred her to Ms Du Toit at North Harbour Law.  She later learned Mr Dillon was a former principal of that firm.  On Ms Du Toit’s advice Mrs Taylor signed the first agreement.  The agreement, signed on 13 February 2006, was conditional on Haururu’s obtaining resource consent for the cleanfill operation.   It also required Haururu to arrange for a new title to issue in respect of the 2.9 hectare back lot, but it was silent as to what was to happen if the necessary subdivision could not be effected.

[21]     Mrs Taylor says the first agreement was not conditional on a LIM report or a building inspection of the house.  That, she says, was consistent with the assurances she was given in the meeting on the back deck that the house would be taken ‘as is, where is’.

[22]     Mrs Taylor says that Ms Du Toit did not ask her any questions about whether there was a code compliance certificate.  Nor did she explain the vendor warranties in the agreement for sale and purchase.

[23]     Correspondence ensued between Ms Du Toit and Mr Dillon concerning the issue  about  what  would  happen  if  the  subdivision  application  for  the  back  2.9 hectares should strike problems.  Ms Du Toit had emailed Mr Dillon on 6 February

2006 stating that if the subdivision consents were not obtained then the first agreement should be voidable at the insistence of either party.

[24]     Two  years  passed  and  subdivision  consent  was  not  obtained  though  the cleanfill operation was underway.  Negotiations were then entered into for Haururu to buy Mrs Taylor’s entire property.

[25]     As at mid May 2008 Ms Du Toit was still acting for Mrs Taylor.  Ms Du Toit sent Mrs Taylor a further offer from Mr Dillon with Rahopara Farms substituted as purchaser and arranged for a new solicitor, Mr Stokes, to act for Mrs Taylor.  Mrs Taylor says she had no reason, in relation to the new offer, to believe that the ‘as is, where is’ condition would not continue to apply.  She signed the second agreement which like the first was not conditional on a LIM report or a building report on the house.

[26]     On the morning of 27 June 2008, the day of settlement, the solicitors acting for Rahopara Farms asked for an acknowledgment that a code compliance certificate existed for the building works carried out on the property.   That email said the purchasers wanted confirmation that Mrs Tylor would bear the cost of obtaining the code compliance certificate if one had not been issued.

[27]     Later  and  following  settlement  Mrs  Taylor  was  ‘shocked’  to  learn  of Rahopara Farms claim for the cost of carrying out building works to the house to obtain a code compliance certificate.  She made enquiries at the local council about who had applied for the code compliance certificate.  Privacy issues prevented her from getting an answer.

[28]     Mrs Taylor’s husband deposes that he was at the ‘back deck meeting’ in

2005.  He says Mr Dillon and Mr Boocock were told clearly about the fact the house was not finished; that Mr Dillon and Mr Boocock made it clear that they did not care about the house; and that they would take it ‘as is, where is’.  He says he too was

shocked  when  Mr  Dillon’s  lawyers  raised  the  issue  of  there  being  no  code compliance certificate for the property on the morning of the settlement.   He does not accept that Mr Dillon would have his lawyers raise the issue of the code compliance certificate on the morning of settlement without he (Mr Dillon) knowing beforehand that there was no code compliance certificate.

[29]     In  mid  2008  Mr  Taylor  went  to  the  local  authority  and  completed  an

‘amendment to durability’ application for the property.

[30]     Mr Dillon and Mr Boocock depose to their recall of the back deck meeting. They say at no time was there any discussion about the fact the house had not been finished or had building defects, or that it had no code compliance certificate, or that Haururu was purchasing the house as it was and was assuming liability for any inherent building defects.  In short, they reject claims of an “oral” agreement.

[31]     Mr Dillon also deposes that Mr Taylor applied to the local council for a code compliance certificate on 25 July 2008 or an ‘amendment to durability’ (that is, an application to amend an existing building consent) in what appeared to be an attempt on behalf of Mrs Taylor to fulfil the requirements of clause 6.2(5) of the agreement for sale and purchase.  This occurred about one month after the sale of property had settled, following which by mutual convenience, Mr and Mrs Taylor remained in occupation.

[32]     Mr Dillon says that had there been disclosure of building defects by Mr or Mrs  Taylor  he  would  have  instructed  his  building  consultant,  Mr  Jordan,  to undertake an inspection to quantify the works required to get the house to a stage where a code compliance certificate would be issued.  Rather, on 25 June 2008, with settlement imminent he instructed Mr Jordan to search council files to ascertain if there were any unfinished building consents.  Mr Jordan’s response was that he was unable to do so in the short time available.   Later in September 2008 Mr Jordan advised him of remedial waterproofing works required before a code compliance certificate could be obtained.

[33]     Mr Dillon ordered a LIM on 3 July 2008, three days after settlement.  It was received by him on 8 July 2008.  He says that he did not order a LIM in respect of the first agreement as the settlement was subject to a subdivision taking place and he was waiting until a settlement date had been fixed.

[34]     Mr Dillon rejects connections with Ms Du Toit, and says he had nothing to do with her law firm at the time as it was the practise of his former partner with whom partnership had been dissolved in 1997. Also, as he notes in relation to settlement of the second agreement, Mrs Taylor had the independent services of Mr Stokes, who drafted the relevant agreement.

Principles

[35]     Rahopara Farms is entitled to summary judgment if it can show Mrs Taylor has no defence to the claim of liability.  In the face of the vendor warranty clause in the second agreement, Mrs Taylor must show that there is an arguable case that is not resolvable without recourse to a trial.  Generally, the courts do not resolve material conflicts  of  evidence  to  assess  the  credibility  of  deponents  in  a  summary way. However,  the  courts  do  not  readily  accept  evidence  which  is  inconsistent  with

undisputed contemporary documents, or evidence which is inherently improbable.1

The court may take a robust and realist approach where the facts warrant it: Bilbie

Dymock Corp Ltd v Patel & Anor (1987) 1 PRNZ 84 (CA).

[36]     An agreement for the sale and purchase of land is required to be in writing, and any waiver of a condition in that agreement must also be in writing.  The parole evidence rule would exclude any evidence of the alleged agreement.  In Newmans v Ranier, 2 Fisher J stated the following in relation to the parole evidence rule:

In the end the position would still seem to be this.  The aim is to ascertain the objectively expressed intentions of the parties.  If the written document appears on its face to be a comprehensive record of an agreement, that in itself will be strong evidence that it was intended to be exhaustive.   The more the suggested oral term is in disharmony with the wording of a written document, the more difficult it will be to persuade the Court that it was

intended to survive the written document.  But if, from whatever source, the Court is satisfied as to the parties’ real agreement, it will give effect to that agreement regardless of the form in which it may have been expressed.  In the end, the search is therefore for the objectively expressed intentions of the contracting parties.

[37]     In Krukziener v Hanover Farms the Court of Appeal stated the following:3

Collateral contract

[34] Evidence of what was said in negotiations is not normally admissible to contradict the terms of a written contract (the extrinsic evidence rule, so called because the evidence is extrinsic to the contract): Edwards v O'Connor [1991] 2 NZLR 542 (CA), at p 548. That is so because pre-contract negotiations are normally irrelevant, except when used for the limited purpose of ascertaining what objectively observable facts, as opposed to intentions, must have been in the minds of the parties: Eastmond v Bowis [1962] NZLR 954 (SC), at pp 959-960, Potter v Potter [2003] 3 NZLR 145; [2003] NZFLR

1035 (CA), at para 34. [(2008) 19 PRNZ 162, 171]

[35] Extrinsic evidence is admissible to establish a collateral contract, which may supplement or vary the principal agreement in ways that do not contradict its primary purpose: Lysnar v National Bank of NZ Ltd [1935] NZLR 129 (PC), A M Bisley & Co Ltd v Thompson [1982] 2 NZLR 696 (CA). In a commercial transaction between experienced parties who are legally represented, strong and unequivocal evidence is needed to warrant an inference of a common understanding that was not expressly recorded: Air NZ Ltd v Nippon Credit Bank Ltd [1997] 1 NZLR 218 (CA), at p 225.

[36]     We  accept  Mr  Carruthers'  submission  that  the  defence  is  not arguable. The  agreement  that  Mr  Krukziener  alleges  is  far  from unequivocal   and   would   contradict   central   terms   of   the   loan agreement, namely the circumstances in which Elders would be able to accelerate the loan.

Discussion

[38]     Counsel  for Mrs Taylor  submits  that it  is  at least  arguable that  the oral assurances given by Mr Boocock and Mr Dillon at the back deck meeting show the house was purchased on an ‘as is, where is’ basis.   And if that is right, counsel submits, there is a foundation for a contract that came to be regarded as partly written and partly oral; or for an oral collateral contract; or for an estoppel argument.

Counsel contends that on an objective examination of the words and the conduct of the parties there is an arguable defence that the parties intended an enforceable oral term.  She submits that it is appropriate for the Court to consider conduct after the alleged contract to assist in determining whether there was such a term.4

[39]     Alternatively, counsel argues that there was a misrepresentation by Mr Dillon on behalf of Rahopara Farms which arguably comprises misleading and deceptive conduct in trade under  the Fair Trading Act 1986, or gives rise to  an estoppel argument.

Oral term

[40]     Counsel submits that attention ought to be paid to the motivating commercial factor for the back deck meeting, which was to secure Mrs Taylor’s agreement to the resource consent application to operate a clean fill on the adjoining property.   As much was recorded in the recitals to the first sale and purchase agreement.  Also, though Messrs Dillon and Boocock deny it, Mr and Mrs Taylor are firm that there was a discussion about the condition of the house.

[41]     Counsel  submits  that  attention  should  also  be  paid  to  Rahopara  Farms’ conduct.   If, as Rahopara Farms now contends, the need for a code compliance certificate was always in contemplation, then why, counsel asks, did the purchaser not take steps to obtain such until the date of settlement was upon it?  Why was no inspection of the house undertaken by Mr Dillon at any time?  Counsel argues that the fact that Mr Dillon did not order a LIM is consistent with Mrs Taylor’s position that the property was bought ‘as is, where is’.  It is also telling, she contends, that Mr Dillon, an experienced commercial solicitor did not obtain a building report.   He knew Mrs Taylor was a vendor who had caused work to be done on the house, yet he did not obtain advice or have a check of the building work before committing to the purchase, as he surely would were he not buying ‘as is, where is.’ He would know it is often not sufficient to rely upon a LIM.

[42]     In this case neither agreement was conditional on a LIM report.  Counsel for Mrs Taylor suggests that this is because Mr Dillon accepted that he was purchasing on an ‘as is, where is’ basis.  Counsel submits that any claims by Mr Dillon that he did not propose to obtain a LIM report until after the subdivision in respect of the first agreement had been obtained, are disingenuous. Counsel points out that the plaintiff’s solicitor raised the issue of breach of warranty for the first time on the morning of settlement and just a few days earlier asked Mr Jordan to search the council files to ascertain if there were any outstanding code compliance certificate for consented building works.  Yet, on the day of settlement the plaintiff’s solicitor wrote to the defendant’s solicitor stating that it appeared there was not.

[43]     Counsel for Mrs Taylor suggests there is some inconsistency in the plaintiff’s conduct and with its claims that it did not buy the property on an ‘as is, where is’ basis.

[44]     Counsel also argues that at important times Mrs Taylor was represented by Ms Du Toit who did not advise her regarding vendor warranties or enquire whether there was a code compliance certificate.  Mrs Taylor says Ms Du Toit has refused to provide a written report of her handling of the file including discussions between her and Mr Dillon which might corroborate the existence of the oral agreement.

[45]     Counsel submits that while an oral statement which directly contradicts a written term will have difficulty obtaining acceptance, there is now some judicial movement which alleviates that difficultly. 5

Interpretation of clause 6.2 warranties

[46]     At the hearing counsel raised an additional argument based, she said, on the correct approach to interpret the wording of the warranty in cl 6.2(5).  She argues that the words ‘Where appropriate a code compliance certificate was issued for those works permitted to be done upon a property’ do not preclude an oral term to the effect  that  a  code  compliance  certificate  is  not  required.    Indeed  on  a  strict

construction the words ‘where appropriate’ acknowledge the possibility that a certificate is not appropriate where the parties have agreed on a sale that is to be ‘as is, where is.’

[47]     Counsel submits that on the facts of this case the written clause should be strictly and literally construed against Rahopara Farms.

Estoppel

[48]     Mrs Taylor’s estoppel defence is essentially that Rahopara Farms (via Mr Dillon) should not be permitted to deny an assumption, belief or expectation that it encouraged Mrs Taylor to accept.   Counsel submits that to do so would be unconscionable. An impression created by a representation can be sufficient. 6

[49]     Counsel argues that the oral assurances given at the back deck meeting were acted on by Mrs Taylor in that:

(a)       She did not take legal advice on them;

(b)She did not subsequently perceive any cause to revisit the condition of the building and did not take any steps to obtain a code compliance certificate or ‘finish’ the house;

(c)       She consented in writing to the resource consent application; and

(d)She entered into both agreements on an ‘as is, where is’ basis and therefore upon the understanding she was not obliged to spend any money on the house.

Assessment

Oral Term

[50]     I accept,  as  counsel  for  the  plaintiff  submitted,  that  there  is  no  realistic evidential basis for the contention that the house was sold on an ‘as is, where is’ basis or that there was an oral term to that effect.  My reasons follow:

[51]     Invariably a contract for the sale and purchase of land is required to be in writing as is any waiver of a condition in that agreement.7   In this case the contract appears clear and unequivocal; both contracts contained the vendor warranty provision.

[52]     An ‘as is, where is’ condition would have been significant; it would have invited a substantial concession by the purchaser, which would normally have been the subject of a special written clause.  No clause to that effect was contained in the agreements:

(a)      The first agreement was dated 13 February 2006.   It followed the evaluation  of  Mr  Morse  dated  30 August  2005  in  which  there  is reference to ‘some minor finishing’ being required.  Nowhere in the agreement is there any reference to the house being accepted without a code compliance certificate.   No clause refers to the alleged agreement Mrs Taylor contends for; and

(b)The second agreement with Rahopara Farms similarly contains no such clause.

[53]     Moreover, there is no subsequent conduct that assists the defendant.  There was no further meeting of the parties before the second agreement was signed. There is no correspondence before or subsequent to the second agreement to take the

house ‘as is, where is’.  Indeed it has to be asked why, if it is contended the house

7      Edward v O’Connor [1991] 2 NZLR 542 (CA).

was accepted ‘as is, where is’, Mr Taylor would go to the council one month after settlement and apply for an amendment to durability, a step preliminary to the issue of a code compliance certificate?

[54]     Purposefully, a contract for the sale and purchase of land must be in writing. Oral evidence is insufficient to contradict or change the contract; evidence is inadmissible to prove orally agreed material terms.   However, extrinsic evidence may  be  admitted  to  establish  a  collateral  contract,  which  does  not  supplant  or

contradict the principal written contract.8    What Mrs Taylor asserts here is an oral

term that contradicts the plain input of the warranty in clause 6.2(5).  She makes no claim that the dwelling and associated building work is work that does not require a code compliance certificate under the statutory building regime.

[55]   Courts are wary of collateral contract claims. Such claims provide an opportunity for one party to avoid the obligations of the contract it has signed.  This is even more so when it is claimed the collateral contract was agreed to prior to the written contract.  In that case, an alleged collateral contract should have been subject to special mention or condition in the written agreements.

[56]     Furthermore, there is no claim that would support a defence of ‘mistake’. There is no evidence that Rahopara Farms or its representatives were aware of the mistaken belief that Mrs Taylor said she held as to the basis of the contract.

[57]     In this case Messrs Dillon and Boocock deny the existence of a collateral agreement.   The claim of such a contract has effectively only been raised in the outcome  of  Rahopara  Farms’s  proceeding  claim.    It  is  also  arguable  that  the existence of a collateral contract in connection with the first agreement does not subsist to the terms of the second agreement despite the continuing role of Mr Dillon.  The second contract was quite different; it involved a greater area of land, at a higher price and was subject to different considerations regarding its intention.

[58]     There was no obligation on the part of Rahopara Farms to obtain a LIM report  even  though  if  such  had  been  obtained  the  lack  of  a  code  compliance certificate would have been discovered.   The clause 6.2(5) warranty provision provides that the obligation to settle remains despite any breach of warranty or undertaking provided.   In this case Rahopara Farms did settle, and its rights were retained whether or not a LIM report was acquired before settlement.

Estoppel

[59]     Likewise a claim of estoppel fails.  There is no evidence of an unequivocal representation made on behalf of Rahopara Farms that it would not require a code compliance certificate or that it would waive the requirement.

[60]     Mrs Taylor says she referred to the fact that the house had not been finished. There is no dispute about that.  However, there is also no reference to knowledge of the fact that the house was not watertight, nor that a code compliance certificate had not been issued.   It seems to be common ground that all believed that only minor finishing was required.

[61]     Moreover, any claim that Ms Du Toit may have acted in deference to Mr Dillon’s position is only speculation.  Materially, the second agreement was in any event checked by Mr Stokes whom Mrs Taylor directly engaged at that time.

[62]     There is no evidence that Mrs Taylor advised either Ms Du Toit or Mr Stokes of the ‘as is, where is’ condition.  There were other special conditions contained in the first agreement, but nothing about the house.

[63]     Critically,  Mrs  Taylor  contends  that  a  representation  was  made  in  the discussions on the back deck.  These discussions took place some months prior to her signing the first agreement.  Mrs Taylor says that based on their discussions, she acted to her detriment by entering into the first agreement, and later the second, on terms inconsistent with the representation.   These circumstances, counsel argues, create a promissory estoppel.

[64]     However, a promise made in negotiations that are subject to contract will not lead to an estoppel: 9

[38]      Following the decisions of the High Court of Australia in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 and Commonwealth v Verwayen (1990) 170 CLR 394, promissory estoppel is no longer confined to promises affecting pre-existing rights. However, the departure from a voluntary promise is not unconscionable in itself, even if detriment results. Rather, equity responds to the defendant creating or encouraging an assumption in the plaintiff and its knowledge that the plaintiff will rely on the assumption to its detriment. The plaintiff must have been led to believe that the promise would affect or result in legal relations; thus a promise made in negotiations that are subject to contract will not lead to an estoppel: Waltons Stores at 406 and 422. Lastly, equity does not intervene to satisfy the promise, but to avoid the detriment. These requirements in the current authorities, as the High Court recognised, are seen as necessary to preserve the law of contract as the principal mechanism for the enforcement of promises.

Conclusion

[65]     The  plaintiff  has  established  its  claim  that  Mrs  Taylor  has  no  arguable defence to its claim for summary judgment as to liability.

[66]     Conceivably issues of responsibility will involve enquiries about the amount of the plaintiff’s claim; of the fact that repairs were done and whether Mrs Taylor was engaged in that process; and about the quality of advice received by Mrs Taylor throughout  the  processes.    However,  those are  matters  for consideration  on  the quantum claim in due course.

Result

[67]     I  am  satisfied  there  is  no  evidence  that  would  support  an  oral  term  or estoppels, much less of a kind the Court would accept, in the circumstances of this case.   Beyond the time when it is said the ‘as is, where is’ condition was agreed nothing has followed by further discussions or negotiations or in a written contract

which refers to it.  Indeed it featured belatedly as a reason for defence.  That is good

9      Krukziener v Hanover Finance Ltd (2008) 19 PRNZ 162 at [38].

reason for the Court to infer the claims of an oral promise should not impose on considerations of the summary judgment application.   After all, there is a gap of nearly three years from the time it is alleged the oral agreement was made and when the second the agreement was entered into.   It is appropriate to adopt a robust approach in rejecting claims of defences based on estoppel or on deceptive conduct.

[68]     I make orders as follows:

(a)      Summary  judgment  is  entered  in  favour  of  the  plaintiff  on  the question of liability;

(b)Pursuant to r 12.3 of the High Court Rules, there be a trial as to the quantum to be paid upon the plaintiff’s claim;

(c)       Costs are reserved pending the trial as to quantum; and

(d)The   Registrar   is   to   allocate   a   telephone   case   management conference for the purpose of discussing directions to deal with any interlocutory issues and pre-trial matters.  Memoranda are to be filed and served 2 days prior and are to deal with all relevant matters set

out in Schedule 5 of the High Court Rules.

Associate Judge Sargisson