Shen v Ossyanin - [2019] NZHC 135

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-00855

[2019] NZHC 135

BETWEEN
ZHAOWU SHEN

Plaintiff

AND

ANDREY YURIEVICH OSSYANIN AND TATYANA OSSYANINA

First Defendant

HARRINGTON PROPERTY INSPECTIONS LIMITED

Second Defendant

Hearing: 3 – 7, 11 – 12, 14 September and 17 December 2018

Counsel:

A Sharp and C Huang for Plaintiff

R J Macdonald and M Cherrington for First Defendant

Judgment:

14 February 2019

JUDGMENT OF WHATA J

This judgment was delivered by me on 14 February 2019 at 12.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Jesse & Associates, Auckland
MBC Law Limited, Auckland

SHEN v OSSYANIN [2019] NZHC 135 [14 February 2019]

Introduction

[1] This case is about misrepresentation and mistake. Mr Shen purchased an architecturally designed home from Mr Ossyanin. Mr Shen’s first language is Mandarin. Mr Ossyanin’s first language is Russian. They do not speak English. Immediately prior to purchase, Mr Shen and Mr Ossyanin met. Mr Shen was assisted by Ms Chen. She cannot speak Russian, but she speaks English. Mr Ossyanin was assisted by Mr Naoumov. He cannot speak Mandarin, but he speaks English. Mr Shen said he asked whether the house was leaking or had any problems. He said he was told “no”. Mr Ossyanin denies there was any question about “leaks”. The house leaks (though it is not a leaky home as that term is usually understood).

[2] This judgment determines what was said and whether it amounts to an actionable misrepresentation. An issue of common mistake is also briefly addressed.

Background

[3] Mr and Mrs Ossyanin purchased a Peter Bosley designed home at 3 Wairangi Street, Herne Bay, in 2003. It was their family home for about 10 years before they decided to sell it. The property was then advertised by Barfoot & Thompson on the following terms:

“Waterfront Work of Art” – Herne Bay, Herne Bay Invest in one of Auckland most iconic architecturally inspired residences.

The craftsmanship and attention to detail that has gone into all aspects of construction both external and internal will endure through the years and mark this home as a collector’s piece.

Designed by Pete Bosley, inspired by Frank Lloyd Wright in 1988 on a warm north facing 2049 square metre site provides; 4 x bedrooms, 3 x bathrooms, 4 x car garaging, an indoor spa pool and sauna complex, billiard room and various lounges/living spaces and a large swimming pool all orientated towards extensive inner harbour and Harbour Bridge views!

In addition, there is a fully self-contained apartment above the 4-x car garage suitable for guests or staff.

CV $11.5 million.

[4] Mr Shen expressed interest in the property and then entered into a sale and purchase agreement with the Ossyanins on 10 October 2013 (“the Agreement”). The

sale price was $10,750,000. The Agreement was conditional on Mr Shen confirming within 30 days satisfaction with a Building inspection report on the property to be obtained…

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 Shen v Ossyanin

Details

AGLC: Shen v Ossyanin [2019] NZHC 135
Case: [2019] NZHC 135
Decision Date: 14 February 2019

CaseChat Overview and Summary

This case was heard by Whata J in the High Court of New Zealand. The plaintiff, Mr Shen, sought damages for misrepresentation against the defendant, Mr Ossyanin, in relation to the sale of a property. The central issue was whether Mr Ossyanin made misrepresentations about the property's condition, specifically regarding leaks, and whether these misrepresentations induced Mr Shen to purchase the property. The court found that while Mr Shen asked about leaks, Mr Ossyanin's responses were based on his honest belief that the property did not leak, and his statements were not actionable misrepresentations. Furthermore, Mr Shen's reliance on Mr Ossyanin's statements was deemed unreasonable given the availability of expert advice highlighting potential defects. The court dismissed the claim for misrepresentation but reserved its decision on the issue of common mistake pending further argument.

Orders