Roberts v Jules Consultancy Ltd - [2019] NZHC 555

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-130

[2019] NZHC 555

UNDER the Fair Trading Act 1986

BETWEEN

MICHAEL DOUGLAS ROBERTS

Plaintiff

AND

JULES CONSULTANCY LIMITED

First Defendant

JULES LELOIR

Second Defendant

Hearing: 18-19 and 21 February 2019

Counsel:

B M Easton and H E T Thomson for Plaintiff

Second Defendant in Person (with Mr Leloir assisting)

Judgment:

25 March 2019

JUDGMENT OF THOMAS J (LIABILITY)

[1] On 10 March 2014, the plaintiff, Michael Roberts, declared his agreement to purchase Unit 812 in the Sirocco Apartments in Wellington City (the Apartment) unconditional. Just prior to that confirmation, Mr Roberts’ lawyers spoke to the second defendant, Jules Leloir, who is a director of the first defendant, Jules Consultancy Limited (Jules Consultancy), which provides body corporate management and consultancy services to the Sirocco Apartments Body Corporate. There was a discussion involving the weathertightness of the Sirocco Apartments.

[2] Shortly after he purchased the Apartment, Mr Roberts became aware of significant weathertightness defects in the Sirocco Apartments. He claims Mrs Leloir

ROBERTS v JULES CONSULTANCY LIMITED [2019] NZHC 555 [25 March 2019]

and Jules Consultancy made false representations and engaged in misleading and deceptive conduct when responding to queries as to whether there were weathertightness issues in the Sirocco Apartments. Mr Roberts claims the need for remedial works to the Sirocco Apartments means he has suffered and will suffer loss, including an $11,460 special levy he has paid, $456,916 for his share of the estimated cost of the remedial works, consequential losses for storage and alternative accommodation, and general damages of $30,000.

[3] The defendants deny making any misleading representations and say it was not reasonable for Mr Roberts to rely on any representations which might have been made.

[4] Although not pleaded in their initial statement of defence, I gave the defendants leave to file an amended statement of defence to include the affirmative defence of contributory negligence.1 The defendants now plead that Mr Roberts’ contributory negligence needs to be taken into account. In particular, in that he failed to obtain a building report before purchasing the Apartment, failed to request and obtain further information from the defendants which may have alerted him to weathertightness issues, and misinterpreted Mrs Leloir’s responses to questions in relation to the weathertightness issues at the Sirocco Apartments.

[5] Furthermore, the defendants say that any loss the plaintiff may have suffered has not yet crystallised. The Body Corporate has not determined what, if any, action it will take in relation to the defects in the Sirocco Apartments and the options include demolition of the building. The problems are exacerbated by seismic strengthening which is likely required.

[6] The hearing into Mr Roberts’ claim will take place in two parts, first dealing with liability and, secondly, damages. This decision deals with the first part only: whether or not the defendants are liable to Mr Roberts for a breach of their respective duties under the Fair Trading Act…

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 Roberts v Jules Consultancy Ltd

Details

AGLC: Roberts v Jules Consultancy Ltd [2019] NZHC 555
Case: [2019] NZHC 555
Decision Date: 25 March 2019

CaseChat Overview and Summary

In Roberts v Jules Consultancy Limited, the plaintiff, Michael Roberts, brought a claim against the defendants, Jules Consultancy Limited and Jules Leloir, alleging they made false representations and engaged in misleading and deceptive conduct in connection with the sale of Unit 812 in the Sirocco Apartments, Wellington City. The defendants denied any misleading conduct and raised contributory negligence and uncrystallised loss as defences. The primary issue was whether the defendants were liable to Mr Roberts for a breach of their respective duties under the Fair Trading Act 1986. The court found that Mrs Leloir made representations that the weathertightness issues at the Sirocco Apartments related only to the walkways, which were demonstrably untrue and misleading. The court also found it was reasonable for Mr Roberts to rely on Mrs Leloir’s representations. Both Jules Consultancy and Mrs Leloir were in trade and, as such, were liable for misleading and deceptive conduct under the Act. The court held that the defendants engaged in misleading and deceptive conduct and made false and misleading representations in connection with the sale of the Apartment, thereby breaching sections 9 and 14 of the Act.

Orders