Saffioti v Ward - [2013] NZHC 2831

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003390 [2013] NZHC 2831

IN THE MATTER of an appeal against the decision of the
Weathertight Homes Tribunal at Auckland

BETWEEN CARL SANTO SAFFIOTI and EIJA MARITA LINDEN SAFFIOTI Appellants

ANDGREGORY PAUL WARD and KIM MICHELLE WARD
First Respondents
TONY HERON Second Respondent

Hearing: 8-9 October 2013

Counsel: TJ Rainey for Appellants
S Grant for First Respondent
Second Respondent in person

Judgment: 29 October 2013

JUDGMENT OF ASHER J

This judgment was delivered by me on Tuesday, 29 October 2013 at 11.00 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: Rainey Law, Auckland. Kennedys, Auckland.
S Grant, Auckland.

Copy to:
Second Respondent

SAFFIOTI v WARD [2013] NZHC 2831 [29 October 2013]

Table of Contents

Para No

Introduction [1] Lead up to the claim [2] The Tribunal decision [5] The Ward appeal

Introduction [12]

Case law [18] Interpretation of cl 6.2(5)(d) [24] Subclause (b) [45] Breach [57] The Heron appeal [72] Result [83]

Introduction

[1] In 2004, Carl and Eija Saffioti purchased a home at 34 Wairere Avenue, Mt Albert. It proved to be a leaky building and was re-clad. The Saffiotis sought to recover the cost of that re-cladding by issuing proceedings in the Weathertight Homes Tribunal against a number of parties. Those parties included the first respondents Gregory and Kim Ward from whom they had purchased the property, and the second respondent Tony Heron, who had signed the code compliance certificate. Although they succeeded against some parties, the Saffiotis failed in their claims against the Wards and Mr Heron. This is an appeal against those two parts of
the Weathertight Homes Tribunal decision.1

Lead up to the claim

[2] In 2002, Gregory and Kim Ward built a home for themselves at 34 Wairere Avenue, Mt Albert (the property). They had no particular knowledge of or skill in building. They used an architect and employed builders. There was a building consent for the work done, and after the work was completed they obtained a code compliance certificate (CCC). They employed Approved Building Certifiers Ltd (ABC), a building certifier, to carry out the certification process. One of the employees of ABC was the second respondent, Mr Heron. There were no
weathertightness issues evident after completion of the work or through the duration

1 Saffioti v Ward [2013] NZWHT Auckland 17.

of the Wards’ ownership of the property. There was no suggestion that they were aware of any problems.

[3] On 26 September 2004, the Wards and Saffiotis entered into an agreement for sale and purchase of the property to the Saffiotis for $600,000. The agreement was conditional on obtaining a LIM report and a satisfactory pre-purchase building report. These reports were obtained and did not contain significant adverse information.

[4] The Saffiotis settled and occupied the property for almost five years without any leaking issues becoming apparent. Then, in June 2009, they experienced a leak in the lounge. On 26 November 2009, they made an application for…

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 Saffioti v Ward

Details

AGLC: Saffioti v Ward [2013] NZHC 2831
Case: [2013] NZHC 2831
Decision Date: 29 October 2013

CaseChat Overview and Summary

The Saffiotis had purchased a property from the Wards, who had constructed the property and obtained a code compliance certificate (CCC) prior to sale. The Saffiotis brought proceedings in the Weathertight Homes Tribunal to recover the cost of re-cladding the property after it was found to be a leaky building. The Saffiotis' claims against the Wards and Mr Heron, who had signed the CCC, were dismissed. The Saffiotis appealed the dismissal of their claims against the Wards and Mr Heron. The Court considered the meaning of certain warranties in the agreement for sale and purchase, and whether there had been a breach of those warranties. The Court found that the warranties did not extend to a warranty that there had been compliance with the Building Code when the house was built. The Court also found that Mr Heron had not breached any duty of care by signing the CCC. The appeal was dismissed.

Orders