Reid v Taylor - [2023] NZHC 1231

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-550

[2023] NZHC 1231

BETWEEN
TIMOTHY JAMES REID, GILLIAN RUTH REID and DAVID MILLAR LANG as

trustees of the Lentune Trust Plaintiffs

AND

INGRID ROBYN TAYLOR and ANDREW

DENIS SUNDERLAND as trustees of the Sunderland No 2 Trust

Defendants

Hearing: 20 April 2023

Appearances:

G D Jones and S J McLean for Plaintiffs N J McKessar for Defendants

Judgment:

24 May 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 24 May 2023 at 5.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

REID v TAYLOR [2023] NZHC 1231 [24 May 2023]

[1] The plaintiffs purchased a residential property from the defendants. They consider the defendants breached a warranty in the agreement for sale and purchase because the sewer and stormwater services to the property were not in reasonable working order as at the date of settlement.1 They have completed repair work and seek to recover the costs of doing so from the defendants. They apply for summary judgment as to liability for only some of the alleged defects and costs.

[2] The defendants oppose summary judgment and argue the vendor warranty does not apply, and that, in any event, the sewer and stormwater services were in reasonable working order on the date of settlement.

[3]The issues arising are:

(a)Does the vendor warranty apply to the sewer and stormwater services?

(b)Were the sewer and stormwater services in reasonable working order as at the date of settlement?

Factual background

[4]The plaintiffs are the trustees of the Lentune Trust.

[5] The defendants are the trustees of the Sunderland No 2 Trust. They were the owners of the property at 34A Jacksons Road from 2014 until it was purchased by the plaintiffs in March 2022. The defendant, Andrew Sunderland, and his partner lived in the property during that period.

[6] The property was damaged in the 2010/2011 Canterbury earthquakes and was purchased by the defendants on an “as is” basis. I understand that at least some of the defects that the plaintiffs have identified in the sewer and stormwater services are considered by them to be unrepaired earthquake damage.

1 Auckland District Law Society and Real Estate Institute of New Zealand Agreement for Sale and Purchase of Real Estate (11th ed, 2022), cl 7.3(1).

[7] The defendants did some earthquake repairs on the property. The garage was demolished, and the garage and laundry area was rebuilt. Mr Sunderland says the work involved putting in new drainage and pipes in the rebuilt garage and laundry area which connected a sump to a soak pit underneath the garage foundation.

[8] From late January 2022, the defendants marketed the property for sale through Harcourts Gold Real Estate. In the marketing materials, the property was described as situated “in the desirable neighbourhood of Fendalton”, as well as having mains sewerage, a “highly functional kitchen”, and “promising an effortless lifestyle”.

[9] One…

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 Reid v Taylor

Details

AGLC: Reid v Taylor [2023] NZHC 1231
Case: [2023] NZHC 1231
Decision Date: 24 May 2023

CaseChat Overview and Summary

The plaintiffs, Timothy James Reid, Gillian Ruth Reid, and David Millar Lang as trustees of the Lentune Trust, sought summary judgment against the defendants, Ingrid Robyn Taylor and Andrew Denis Sunderland as trustees of the Sunderland No 2 Trust, for breach of a vendor warranty in the agreement for sale and purchase of a residential property. The plaintiffs argued that the sewer and stormwater services were not in reasonable working order at the date of settlement and sought to recover the costs of repair work completed. The defendants opposed the application and argued that the vendor warranty did not apply and, in any event, the services were in reasonable working order at settlement.

The court considered two primary issues: (a) whether the vendor warranty applied to the sewer and stormwater services, and (b) whether these services were in reasonable working order at the date of settlement. The court found that the meaning of the vendor warranty was unclear and that there was an arguable case that it did not apply to the sewer and stormwater services. The court also found that the plaintiffs had not established that the services were not in reasonable working order at the date of settlement, as there was insufficient evidence to support their claims. The plaintiffs' application for summary judgment was therefore dismissed. The case was set down for a case management telephone conference.

Orders