Roberts v Jules Consultancy Ltd (in liq)

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA58/2020
 [2021] NZCA 303

BETWEEN	MICHAEL DOUGLAS ROBERTS Appellant
AND	JULES CONSULTANCY LIMITED (IN LIQUIDATION) First Respondent
AND	JULES LELOIR Second Respondent

Hearing:  Further submissions:	18 February 2021 23 June 2021
Court:	Gilbert, Mallon and Edwards JJ
Counsel:	B M Easton for Appellant No appearance for First Respondent J K Mahuta-Coyle for Second Respondent
Judgment:	9 July 2021 at 3 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.

B    The cross-appeal is allowed in part. 

CThe reduction for contributory negligence of 15 per cent is replaced with a reduction of 40 per cent.  This is also to apply to the award of general damages.  The judgment in the sum of $93,500 plus general damages of $25,000 is set aside and replaced with a judgment for $66,000 plus general damages of $15,000.

DCosts are to lie where they fall.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Table of contents

Introduction  [1]
The facts  [9]
Liability judgment  [40]
Quantum judgment    [51]
Appeal  [54]
Cross-appeal    [56]
Did the Judge err in her assessment of damages prior to any
reduction being made for contributory negligence?  [57]
           General principles  [58]
           Pleadings  [65]
           Submissions  [67]
           Assessment  [70]
Was the Judge wrong to deduct 15 per cent for contributory
negligence?  

Failure to obtain a specialist building report  [88]

Failure to obtain the body corporate minutes  [97]

Relative blameworthiness and causal potency  [104]

Overall assessment  [113]

Post-hearing issue  [122]

Costs  [123]
Result  [124]

Introduction

1. Misleading statements made by a body corporate secretary about weathertightness issues were relied on by a purchaser in proceeding with the purchase of an apartment in a multi-unit apartment building.  It turned out that the building suffered from serious weathertightness defects.  This appeal raises four issues in respect of the assessment of the damages awarded to the purchaser under s 43 of the Fair Trading Act 1986 (the FTA).  The damages were assessed as being the difference between the purchase price paid and the market value of the property at the time of sale if it had been properly described.  The first issue is whether this was the correct approach or whether the losses should have been assessed with reference to the value of the apartment had the building been constructed without defects.  The second issue is whether there was any loss at all, assuming the Judge’s approach to the assessment was the correct one.  The third issue is whether the loss should have been assessed at the date of the hearing, rather than five and a half years earlier when the misleading statements were made and relied on.  This matters because the estimated repair costs more than doubled during this period.  The last issue is whether the damages should have been reduced for the contributory negligence of the purchaser in failing to obtain a specialist building report and the body corporate meeting minutes before unconditionally committing to the purchase and, if so, to what extent.

2. On…