Sole v Hutton
[2025] NZHC 430
•7 March 2025
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV 2022-470-155
[2025] NZHC 430
BETWEEN MURRAY JAMES SOLE and LORETTE MYRLA SOLE
PlaintiffsAND
JOHN DAVID HUTTON, HEATHER ETIENNE HUTTON and JOHNSTON LAWRENCE TRUSTEE SERVICES LIMITED
Defendants
Hearing: 10-14 February 2025 Appearances:
N Smith and G Grant for the plaintiffs M C Wolff for the defendants
Judgment:
7 March 2025
JUDGMENT OF BLANCHARD J
This judgment was delivered by me on 7 March 2025 at 2.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Abernethy Broatch Law, Mt Maunganui JB Morrison Lawyers, Wellington
SOLE and SOLE v HUTTON and OTHERS [2025] NZHC 430 [7 March 2025]
[1] Murray and Lorette Sole are the owners of apartment 3A in the Belle Mer apartments at 53 Marine Parade, Mt Maunganui. They purchased the apartment by auction from John and Heather Hutton, and Johnston Lawrence Trustee Services Ltd (JLTS), the trustees of the Hutton Trust (the Huttons), for $1,495,000.
[2] After the sale settled, the Soles discovered that the Belle Mer had weathertightness issues. This eventually led to the Body Corporate carrying out major repair work to the apartments. The Soles have paid their share of the cost of the repairs.
[3] The Soles claim that the Huttons are liable to them for breach of warranty, and misrepresentation under s 35 of the Contract and Commercial Law Act 2017 (CCLA). They seek to recover the repair costs they paid, together with other losses they say they have suffered, which total just under $1.3 million.
[4] The Huttons deny that they breached any warranty or are liable for misrepresentation. They also say that the losses claimed are inflated, including because they do not flow from the alleged breaches and misrepresentations, and because of betterment.
Belle Mer apartments
[5] The Belle Mer apartments are in a prime location on Marine Parade. They were constructed in the late 1990s. The apartment building received a code compliance certificate in December 1999.
[6] The building has 16 apartments on three levels. The first and second floors both have six apartments each. The third floor has four apartments. Each of the apartments has a balcony. Some, particularly those on level three, have extensive balconies.
[7] Apartment 3A is the ocean-facing apartment on the third floor. It is also referred to as the penthouse apartment. It is a three-bedroom apartment with two bathrooms. It has an open plan living, dining and kitchen area and a two-car garage
space. It also has a large balcony that can be accessed from the living and dining areas and one of the bedrooms.
Sale and purchase of apartment 3A
[8] In September 2018 the Huttons engaged a real estate agency, trading as Bayleys, to sell apartment 3A.
[9] On or around 11 September 2018, the Huttons signed a Bayleys client checklist and the Bayleys agency contract. In the client checklist, the Huttons checked the box next to the statement:
I/we confirm that to the best of my/our knowledge, there are no hidden or underlying defects in the Property and that no building situated on the Property is a “leaky building” as defined by the Weathertight Homes Resolution Services Act 2006.
[10] The agency contract included a warranty that (except as the owner had disclosed in writing to Bayleys prior to the date of the contract):
(a)the owner has provided to Bayleys all material information pertaining to the property and that all information provided to Bayleys by the owner is accurate, complete and correct in all respects;
(b)to the best of the owner’s knowledge and belief the property is free from any hidden or underlying defects; and
(c)no building situated on the property is a “leaky building” as that expression is defined in the Weathertight Homes Resolution Services Act.
[11]The Huttons ticked a box and initialled next to these warranties.
[12] The Soles had recently listed a property of their own for sale with Bayleys. They were therefore aware of that the Bayleys agency contract contained these warranties. They asked the agent, Peter Clarke, if the Huttons had provided the
warranties. He said they had. Further, when they asked him whether there were any “known issues with the building”, he said there were not.
[13] The apartment was described in marketing material provided to the Soles as a “superb apartment” and a “special gem”.
[14] The parties signed the sale and purchase agreement (SPA) relating to apartment 3A in November 2018.
Discovery of weathertightness issues
[15]The Soles settled the purchase of apartment 3A in May 2019.
[16] In less than a year, they became aware that the Belle Mer apartments had significant weathertightness issues. In February 2020 an unrelated pre-purchase building inspection of apartment 1A identified weathertightness issues and defects.
[17] In March 2020 the then Body Corporate secretary, Robyn Preston-Smith, who had recently been appointed, contacted Paul Probett of Incodo Forensic Building Pathology, a building surveyor, to ask him to carry out an inspection of the Belle Mer apartments. By coincidence, Mr Probett had had a previous involvement with the apartments. He had been engaged in 2014 to prepare weathertightness reports on the property. He provided his 2014 reports to Ms Preston-Smith on 17 March 2020. In this way, Mr Preston-Smith, and through her the Soles, became aware of investigations into the weathertightness of the apartments that had occurred in 2014.
[18] Until 2014 the Body Corporate had managed its own administration. However, in early 2014, an external body corporate secretary, Craig Leishman was appointed. At around the time of his appointment, there were concerns about the state of some of the apartment balconies. As a result, Mr Leishman engaged Wayne Pittams of Independent Property Management Services Ltd to do a preliminary report into the weathertightness of the apartments, particularly the balconies.
[19] On or around 11 April 2014 Mr Pittams provided an initial report. He then arranged for Mr Probett to become involved. He wanted access to Mr Probett’s
forensic skills, including micro drilling. Mr Probett provided two reports on 20 and 21 May 2014. Finally, Mr Pittams and Mr Probett provided a combined report on 27 May 2014.
[20] The reports made it clear that Mr Pittams and Mr Probett had only carried out a “limited assessment” or “limited scope investigations” focusing on obvious and likely areas of decay. They had only had access to around half of the apartments. The moisture testing they had carried out was non-destructive testing. It was recommended that all apartments were subjected to further evidential moisture readings. Nevertheless, the issues causing the water ingress were “relatively clear.”
[21] Mr Pittams and Mr Probett used three investigative methods — visual inspection, non-destructive moisture testing, and Mr Probett’s micro drilling. The reports attached supporting photos and the micro drilling results.
[22]The reports indicated that there were issues with the balconies as follows:
(a)The heights of the thresholds between the balconies and the internal areas of the apartments were too low. The balconies had thresholds of only 10–15 mm, whereas 100–150 mm is necessary to ensure no water ingress. This was described as the “key issue” and a “[k]ey warning indicator”. This issue was leading to episodic leaks when a combination of wind and rain overwhelmed the thresholds.
(b)The waterproof membrane on the balconies was dressed over the building cladding rather than tucked behind the cladding. (The cladding was Exterior Insulation Finishing System (EIFS). EIFS cladding consists of polystyrene boards to which a reinforced plaster coating system is applied. The building mostly had EIFS cladding, but there were also “limited areas” of Fibre Cement (FC) and “smaller areas” of Triboard cladding.) This issue was also described as a “[k]ey warning indicator”. As the EIFS cladding had been finished as a faced sealed system, this issue and issue (c) below meant that any water
entering between joinery components or between joinery and cladding would be trapped.
(c)The EIFS cladding continued right down to the level of the balcony floors and did not leave a space between cladding and the floors.
(d)Balcony tiles were cracking and lifting at “random locations”. The cracking was especially prevalent at expansion joints. The waterproof membrane under the cracked and lifting tiles was very likely damaged.
(e)There were insufficient drainage outlets on large balconies.
(f)Certain windows, referred to as the “octagonal windows”, which looked out on to some of the balconies, were installed in a manner that meant they were reliant on sealant to stop water ingress and were therefore considered high risk. (The octagonal windows were on the corners of the building and were a particular architectural feature of the apartment building.)
[23] The reports referred to evidence of water ingress that was linked to the balconies. Moisture testing showed that there were “[c]onsistent high moisture indications” at the base of the cladding on the balcony walls. Micro drilling, all of which was undertaken in the area of the balconies, showed that there were “[c]lear indications of timber frame decay” in bottom plates of external wall framing of walls leading to some balconies. Eight of the 27 micro drilling results were “concerning” and “unacceptable”. None of the tests indicated complete decay, but “decay, like rust, never really sleeps” and the prognosis was that decay would continue. There was also staining and mould growth on carpet coupled with decay of smooth edge battens in isolated areas.
[24] The reports were mainly focussed on the balconies but also noted issues with the cladding more generally, the roof and in the basement.
[25] The reports suggested that there may be issues with the EIFS, FC, and Triboard cladding more generally. In particular, they said that Triboard is very susceptible to moisture damage. But the reports indicated more investigation was required before a view could be provided.
[26]The issues with the roof were:
(a)the parapet upstand was only approximately 80 mm;
(b)the Butynol waterproofing membrane did not lap fully over the parapet to the outside of the cladding;
(c)the lap joint on the parapet flashing was poor;
(d)there was a small cut in the membrane in one location; and
(e)the lap joints of the Butynol membrane were separating.
[27] The issues with the roof were the likely cause of a leak in one of the bedrooms in apartment 3C.
[28] The issue in the basement was water ingress through the block wall. It was evident there was water ingress because there was efflorescence on the wall. The reports suggested that the problem was caused by the lack of tanking, or a failure of tanking.
[29]The reports were distributed to all apartment owners, including the Huttons.
[30] The Body Corporate then commissioned a further report from Mr Pittams on the remedial work that was required to address the issues and an approximate cost of doing so. Mr Pittams prepared a report on these matters. This included obtaining a report from Quantum, a firm of quantity surveyors. Mr Pittams presented his report and Quantum’s report at the Body Corporate annual general meeting (AGM) in August 2014, which was attended by Mr Hutton.
[31] Mr Pittams’s report at the AGM presented several options for the remedial work. His option 1 involved a full re-roof, new cladding to the whole of level three and both ends of the building, and tanking to the perimeter of the basement. Based on Quantum’s report, Mr Pittam’s estimated the cost of this option was $1,969,099 including GST. Of this cost, $158,226 related to tanking the basement.
[32] Mr Pittams said that the roof had up to five to seven years of life left if only targeted repairs were undertaken. However, he made the point that it would be more efficient to replace the roof straight away. The cost of doing so later would be greater due to lost efficiencies.
[33] At the conclusion of Mr Pittams’s presentation and following discussion, Mr Leishman explained that, under s 138 of the Unit Titles Act 2010 (UTA), the Body Corporate was required to repair and maintain the common areas and any building elements that related to more than one apartment. Thus, the Body Corporate had an obligation to carry out the remedial works.
[34] Neither Mr nor Ms Hutton were members of the Body Corporate committee at the time of the 2014 AGM. (Mr Hutton became a member of the committee at the 2015 AGM. He remained on the committee until the sale to the Soles in November 2018. For a time, he was the chair of the committee.) However, as I have noted, the Huttons received the 2014 reports and Mr Hutton attended the 2014 AGM. It is clear from the minutes of the AGM that he took an active part in the meeting, moving several resolutions.
2016 repairs
[35] The Body Corporate did not accept the recommendations and proceed with re- roofing and re-cladding the building. Instead, in 2016 a new membrane was overlayed on top of the existing Butynol membrane. The unit owners also agreed to individually repair leaks as they appeared in their apartments.
Advice from Mr Probett in 2020
[36] Mr Probett emailed the 2014 reports to Ms Preston-Smith on 17 March 2020. In this email, he also pointed out that the 2014 reports were five or six years’ old and “[u]nfortunately buildings are not like wine and they don’t improve with age.”
[37] The Body Corporate engaged Mr Probett to provide a full, up-to-date report on the apartments that included advice on the remedial works required. He did so on 15 June 2020.
[38] Unlike in 2014, the scope of the report was not limited. Mr Probett was instructed to investigate the whole building envelope and advise as to the general weathertightness of the apartments, and to make recommendations on the appropriate remedial work. This time he was also given full access to the apartments.
[39] Mr Probett did not, however, carry out destructive testing. This was because he advised the Body Corporate it was unnecessary. His recommendation was non- destructive moisture testing, including evidential moisture testing, was sufficient.
[40] Mr Probett’s report indicated that there were water ingress issues throughout the building. As with the 2014 reports, he found that there were issues with the balconies, roof and basement tanking. However, he also found that the EIFS and FC cladding of the building was defective and had elevated moisture readings.
[41] The issues with the balconies and cladding were “widespread”. Mr Probett said they were causing damage and, if left unattended, further damage would likely continue to occur.
[42] Apart from one leaking roof window, the roof did not appear to need immediate repair. As I have explained, in 2016 a membrane had been overlayed on the top of the existing Butynol membrane that Mr Pittams and Mr Probett had reported on in 2014. The purpose of the overlay had been to extend the life of the roof for a period of five to 10 years. Mr Probett reported that the membrane overlay was cracking in multiple areas, but he said that he did not know if the roof was allowing moisture ingress and, if so, if it was causing damage. He therefore said that it may be possible to do nothing
to the roof (other than repair the window) “for a period”. However, Mr Probett did not say how long it was possible to leave the roof and, as it was cracking in multiple areas, it could have started leaking at any time. If and when a roof repair did occur, Mr Probett did not recommend another overlay (“this would be akin to putting a band aid over a band aid”). A full remediation of the roof would be required.
Correspondence regarding the 2014 reports
[43] On 14 July 2020 the Soles emailed the Huttons and asked them to explain why the 2014 reports and the issues identified in them had not been disclosed to them. The Huttons replied agreeing that the situation was “quite alarming” and they claimed that they “did not know about” the reports. The Soles replied providing a copy of the 2014 AGM minutes, which showed that Mr Pittams presented at the meeting and Mr Hutton took an active part in it. The Huttons responded saying, “Apologies – now recall those 2014 reports.”
Remedial work by the Body Corporate
[44] The Body Corporate engaged experts to carry out the necessary remedial works, including an architectural firm (Creative Space), a project management firm (Watershed Construction), a building company (Canam Construction) and a quantity surveying firm (Crowther & Co). All these firms have expertise in remediating leaky buildings.
[45] The remedial works were carried out. Canam Construction issued monthly invoices to the Body Corporate. The invoices were reviewed for the Body Corporate by Crowther & Co. Any claims that were approved for payment were paid by the Body Corporate. The payments by the Body Corporate were funded by levying the owners.
[46] The Soles were issued with invoices by the Body Corporate for the remedial work totalling $1,166,191 including GST. The invoices represented 9.194 per cent of the total remedial cost for the apartments because that was the share the Soles were required to pay under s 121 of the UTA.
[47] At the time of trial, Canam Construction’s final account had not yet been agreed. As a result, there remains a possibility that the Body Corporate will have to pay a further approximately $800,000. This means the Soles could seek to claim a further approximately $73,000 from the Huttons in the future.
Other amounts paid by the Soles
[48] The Soles also say that they personally incurred costs of $97,042.67 to pay for replacement of their water damaged kitchen.
[49] While the work was being undertaken, the Soles required alternative accommodation. As a result, they say they incurred further cost of $50,697.50.
[50]They also incurred $460 for furniture removal.
Overview of claims and defences
[51] The Soles’ statement of claim makes five claims. There are three claims of breach of warranty. These are made under cls 11.2(7), 9.1(1), and 11.2(1) of the SPA. There is also a claim for misrepresentation under the CCLA and a claim under the Fair Trading Act 1986 (FTA). However, during their closing submissions, the Soles advised that they are not pursuing the claim under the FTA because it does not offer anything beyond what may be available to them under the CCLA.
[52] The Soles also made a claim in these proceedings against a real estate agency, but this claim was settled prior to trial for a payment of $45,000.
[53] During trial, the Soles accepted that the amount of $1,166,191.60 they paid to the Body Corporate should be reduced by $11,884.68. Once this amount is deducted, the sum of $1,166,191.60 reduces to $1,154,306.92.
[54]In summary, the Soles claim a total of $1,292,507.09, made up of:
(a)Body corporate remedial costs — $1,154,306.92.
(b)Kitchen replacement costs — $97,042.67.
(c)Alternative accommodation costs — $50,697.50.
(d)Furniture removal cost — $460.
(e)General damages — $35,000.
(f)Less settlement sum — $45,000.
[55] The Huttons deny they have breached the warranties or that they are liable for misrepresentation. They also say that, in the event they are found liable, the losses claimed by the Soles are inflated. They say that the losses do not flow from the breaches, and they raise betterment as an affirmative defence. They also say GST should be excluded from the damages. The Huttons have pleaded contributory negligence, but during their opening submissions they accepted that contributory negligence is not available as a defence to contractual claims of the kind advanced by the Soles.
[56] They say that the Soles’ damages claim should be, at most, $126,167.88, made up of:
(a)Body corporate remedial costs — at most, $156,167.88.
(b)General damages — $15,000.
(c)Less settlement sum — $45,000.
[57] Finally, JLTS raises as a further affirmative defence that its liability under the SPA is limited to the assets of the Hutton Trust.
Claim for breach of warranty in cl 11.2(7)
[58]Clause 11.2(7) of the SPA states:
(7)The vendor has no knowledge or notice of any fact which might give rise to or indicate the possibility of:
(a)the owner or the purchaser incurring any other liability under any provision of [the UTA] or the Unit Titles Act 1972; or
(b)any proceedings being instituted by or against the body corporate; or
…
[59] In Moxon v Cassidy, Winkelmann J (as she then was) said that this warranty “places a very heavy onus of disclosure on the vendor.”1 This is because information must be disclosed even if it might only indicate the possibility of a liability under the UTA or proceedings being issued.
[60] The liabilities under the UTA to which the warranty applies are not limited to possible liabilities relating to the vendor’s particular unit. They extend to liabilities relating to the common area.2
[61] The Huttons accept that the apartments required remedial works in 2022, but they say that they did not have the requisite knowledge at the time of sale. They point to a number of matters to explain why that was the case.
[62] First, they carried out work to apartment 3A to deal with water ingress issues and, as far as they were aware in 2018, the apartment did not leak. They say that they raised the thresholds in the octagonal window and adjacent sliding doors in 2002/2003. They say that they raised the thresholds by 40 mm, and they understood this to be sufficient to prevent water ingress. The Soles dispute that the thresholds were raised by as much as 40 mm and say that, even if they were raised by that much, it was insufficient to stop water ingress. But the more important point is that it is artificial to look at apartment 3A in isolation. The apartments are all part of one building. Water leaks have no regard for legal boundaries. Further, if the apartment building as a whole is a leaky building, ultimately that will result in all the owners becoming liable to pay for the repairs, whether or not particular owners’ apartments leak. What matters is whether the apartment building as a whole was subject to water ingress, not whether apartment 3A leaked.
1 Moxon v Cassidy HC Auckland CIV-2006-404-5380, 27 August 2007 at [46].
2 Miles v Gadd [2022] NZCA 227, (2022) 23 NZCPR 289 at [38]–[40].
[63] Second, the Huttons say that their understanding was that several of the deficiencies identified by Mr Pittams’s and Mr Probett’s 2014 reports did not relate to apartment 3A. Again, even if this is correct, it does not matter because the question is whether the apartment building as a whole was leaky.
[64] Third, the Huttons say their understanding of the reports was that there were no immediate issues, except the need to do some roof repairs, which were subsequently carried out. However, the issue is not what the Huttons subjectively understood the reports to mean, but rather what a reasonable person having knowledge of the reports, and any other information that was known to the Huttons, would have taken the reports to mean. In my view, it is not reasonable to interpret the reports in the way the Huttons say they did. It is clear from the reports that Mr Pittams and Mr Probett considered that the apartments were subject to significant deficiencies that were causing water ingress and required significant remedial work (estimated at just under $2 million).
[65] Fourth, the Huttons say the reports were “preliminary” and further testing was required but that was not undertaken. Again, I do not see this as being relevant. The reports recommended further investigations be carried out. The fact that this did not occur clearly does not mean the reports could be disregarded.
[66] Fifth, the Huttons say that the reports were “no longer of relevance” by November 2018 because of what occurred between 2014 and then, namely:
(a)The Body Corporate decided not to follow the recommendations in the reports. It decided that no action was required other than some roof repairs and targeted repairs of leaks as they appeared by the individual owners of the affected apartments.
(b)Further leaks did appear between 2014 and 2018 (although not in apartment 3A), but these were all remedied by the owners of the affected apartments.
[67] However, I disagree that these events meant that the reports were no longer relevant. As I have explained, cl 11.2(7) places a very heavy onus of disclosure on the
vendor. The reports contained important information and remained relevant despite these subsequent events.
[68] Sixth, the Huttons say it was “concluded” at the 2015 AGM that the Belle Mer was not a leaky building. However, it is not clear from the minutes that this was a conclusion of the meeting as a whole. It appears as if it may have been a comment by one person. The comment was that while the reports have “pointed out some design issues which are now known and can be addressed, the complex is not a “leaky” building as such”.
[69] Seventh, the Body Corporate had a long-term maintenance (LTM) fund. Mr Hutton was one of the committee members responsible for increasing the amounts owners contributed to the fund. At the 2015 AGM it was resolved that the then current contingency levy for capital works of approximately $27,000 per year be increased to $70,000 per year over three years. Here, the Huttons rely on Miles v Gadd.3 In that case, the purchasers’ claim failed because, although the vendor was aware that in the past there had been maintenance issues and they would be ongoing, the vendor had good reason to believe that these ongoing repairs were appropriately addressed as they arose and paid for using funds accumulated from normal periodic levies. There was nothing to alert the vendor to the possibility of a special levy being required to investigate and remediate major systematic weathertightness issues that were found much later.4 However, the present case is plainly different to Miles v Gadd. Because of the 2014 reports, the Huttons were on notice of the possibility of a special levy being required to deal with major systemic weathertightness issues. The LTM fund may have been sufficient to deal with some ongoing maintenance issues, but it was a very long way from being sufficient to meet Mr Pittams’s estimate of nearly $2 million to remedy the weathertightness issues identified in the 2014 reports.
[70] Finally, the Huttons say that during the sale negotiations they disclosed to the Soles that there were various items that required remedial work and therefore they have no liability in relation to those items. However, I do not see this as being relevant to liability. I discuss below whether it is relevant to damages.
3 Miles v Gadd, above n 2.
4 At [75].
[71] My conclusion is that the 2014 reports should have been disclosed to the Soles. The Huttons breached the warranty in cl 11.2(7) by failing to do so.
Claim for breach of warranty in cl 9.1(1)
[72]Clause 9.1(1)(d) of the SPA states:
9.1The vendor warrants and undertakes that at the date of this agreement the vendor has not:
(1)received any notice or demand and has no knowledge of any requisition or outstanding requirement:
…
(d) from any other party; or
…
which directly or indirectly affects the property and which has not been disclosed in writing to the purchaser.
[73] The Soles’ claim is that the Huttons had knowledge of an outstanding requirement that directly or indirectly affected the property. In making this claim, they rely on the 2014 reports, the advice given by Mr Pittams at the AGM on 3 August 2014, and the advice given by Mr Leishman at the same AGM that the Body Corporate had a legal duty under s 138 of the UTA to maintain the common areas and building elements affecting more than one unit.
[74] In my view, the Huttons did not breach this warranty. The 2014 reports and the other matters relied on by the Soles did not amount to a notice or demand or to a requisition or outstanding requirement in terms of cl 9.1(1)(d). They did not constitute the kind of formal demand or requirement that specific action be taken envisaged by the clause.5
5 Western Park Village Ltd v Baho [2014] NZCA 630, (2014) 16 NZCPR 139 at [39]–[40]; Kaitaia Timber Co Ltd v Alternative Enterprises Ltd [2012] NZHC 2497, (2012) 14 NZCPR 177 at [53] and [55]–[57]; Willis v Castelein [1993] 3 NZLR 103 (HC) at 110–111 (HC); Gallagher v Young [1981] 1 NZLR 734 (HC).
Claim for breach of warranty in cl 11.2(1)
[75]Clause 11.2(1) of the SPA states:
11.2If the property is a unit title, the vendor warrants and undertakes as follows:
(1)The information in the pre-contract disclosure statement provided to the purchaser was complete and correct.
[76] Section 146 of the UTA requires a vendor to provide a pre-contract disclosure statement to a buyer before they enter into an agreement for sale and purchase of a unit. The statement must contain prescribed information. Regulation 33 of the Unit Titles Regulations 2011 specifies the prescribed information for the purposes of s 146. At the time of the sale to the Soles, the only information relating to weathertightness that was required by reg 33 was whether the unit or the common property had been the subject of a claim under the Weathertightness Homes Resolution Services Act or any other civil proceedings relating to water penetration.
[77] The Belle Mer apartments had not been subject to any weathertightness litigation. Accordingly, the pre-contract disclosure statement provided to the Soles said nothing about weathertightness.
[78] The Soles acknowledge that the pre-contract disclosure statement provided to them contained all the information prescribed by reg 33. However, they submit that the information prescribed by reg 33 is a minimum requirement only. They submit that, in this case, more information needed to be provided for the pre-contract disclosure statement to be complete and correct.
[79] The Soles point to the fact that a pre-contract disclosure statement prepared in 2015 contained additional wording that was missing from the one provided to them in 2018. The 2015 pre-contract disclosure statement was prepared by Mr Leishman at a time when the Huttons were considering selling their apartment. They subsequently decided not to sell. The additional words were:
The Body Corporate has identified some original design and construction details which are problematic and will need to be addressed at some point to rectify the potential for damage.
[80] The words appeared in a part of the pre-contract disclosure statement relating to maintenance of apartments to be carried out in the next 12 months. The 2018 pre- contract disclosure statement was prepared by Ms Preston-Smith, who, as I have explained, unlike Mr Leishman, did not know about the 2014 reports until after the sale to the Soles.
[81] In my view, the Huttons did not breach this warranty. The pre-contract disclosure statement was only required to contain the information prescribed by reg 33. As it contained that information, it was complete and correct. The drafters of cl 11.2(1) are unlikely to have intended that more extensive disclosure is required under the clause than is required by reg 33. As the pre-contract disclosure statement contained all the information required by reg 33, it also contained all the information required by the clause.
Misrepresentation claim under s 35 of the CCLA
[82]The Soles’ misrepresentation claim is based on:
(a)the statements made to them by Mr Clarke, as agent for the Huttons, during the sales process;
(b)the statements in the marketing material that apartment 3A was a “superb apartment” and a “special gem”; and
(c)the pre-contract disclosure statement (because it was a half-truth).
[83] As explained above, the Bayleys agency contract signed by the Huttons included a warranty that (except as the owner had disclosed in writing to Bayleys prior to the date of the contract):
(a)the owner has provided to Bayleys all material information pertaining to the property and that all information provided to Bayleys by the owner is accurate, complete and correct in all respects;
(b)to the best of the owner’s knowledge and belief the property is free from any hidden or underlying defects; and
(c)no building situated on the property is a “leaky building” as that expression is defined in the Weathertight Homes Resolution Services Act.
[84] At the time of the sale, the Soles had recently listed a property of their own for sale with Bayleys. They were therefore aware that the Bayleys agency contract contained these warranties. With this in mind, they asked Mr Clarke if the Huttons had provided the warranties. Mr Clarke confirmed that they had. Further, when they asked him whether there were any “known issues with the building”, he said there were not.
[85] The Soles say that, in this way, the Huttons, through their agent, implicitly made representations to them in the same form as the three parts of the warranty the Huttons had provided to Bayleys. They say that this constituted misrepresentation because the information provided to Bayleys was not accurate, complete and correct in all respects, the Huttons knew the property was not free from any hidden or underlying defects, and Belle Mer was a leaky building.
[86] The Huttons have two responses to these allegations. First, they say that the warranty was not given for the purpose of being passed on to the Soles, nor was it provided for the purpose of inducing the plaintiffs, who at the time they gave the warranty were not even known to them, to enter the SPA. As the warranty was not intended to induce the Soles to enter the SPA, there was no misrepresentation.6 However, I do not accept this argument is correct. The statements were made by Mr Clarke as agent for the Huttons. It was within the scope of his authority to make the statements. He plainly made the statements to induce the Soles to purchase the property.
[87] Second, the Huttons say that there was no misrepresentation because the representations were qualified so that they were not statements of absolute fact but
6 Savill v NZI Finance Ltd [1990] 3 NZLR 135 (CA) at 145–146.
rather statements as to the Huttons’ knowledge and belief, and they had no knowledge of any defects or leaks.
[88] The key parts of the warranty for present purposes are the second (“to the best of the owner’s knowledge and belief the property is free from any hidden or underlying defects”) and third (“no building situated on the property is a “leaky building” as that expression is defined in the Weathertight Homes Resolution Services Act 2006”). The second is qualified on its face. The third is not, but the Soles say that the representation based on this warranty was impliedly qualified so that it was a statement as to the Huttons’ knowledge and belief. A similar argument was successful in the Court of Appeal in Magee v Mason,7 but not in Ridgway Empire Ltd v Grant.8
[89] Each case turns on its own facts. Whether a representation is qualified in the way the Huttons contend depends on the words used and the circumstances in which they were expressed.
[90] The Huttons rely on two points to support their position that the representation was impliedly qualified. First, they say that the statement in the Bayleys client checklist, which they signed at the same time as they gave the warranty in the agency agreement, is expressly qualified by their knowledge. Second, they point to the fact that, immediately after Mr Clarke confirmed that the Huttons had given the warranty, the Soles asked whether there were any “known issues with the building”, and Mr Clarke said there were not. The Huttons say that this shows that what the Soles wanted to know was what the Huttons knew about the apartments, and Mr Clarke’s answers to the Soles’ questions need to be viewed in that light.
[91] I am not sure whether the Huttons’ first point is correct. As I have explained, the statement in the client checklist was, “I/we confirm that to the best of my/our knowledge, there are no hidden or underlying defects in the Property and that no building situated on the Property is a “leaky building” as defined by the Weathertight Homes Resolution Services Act 2006”. It is unclear whether the knowledge qualification applies to the second part of the statement.
7 Magee v Mason [2017] NZCA 502, (2017) 18 NZCPR 902.
8 Ridgway Empire Ltd v Grant [2019] NZCA 134, (2019) 20 NZCPR 236.
[92] However, I accept the Huttons’ second point. In my view, the fact that the Soles asked whether there were any “known issues with the building” confirms that the exchange between them and Mr Clarke was concerned with the Huttons’ knowledge, rather than absolute fact.
[93] Having accepted that the representations were qualified, I turn to whether the Huttons had any knowledge of defects or leaks. They say that they did not because they had forgotten about the 2014 reports. However, I do not accept that this was the case. I find it very improbable that the Huttons would have forgotten the reports.
[94] There were five reports and they were reasonably extensive. Because of their subject matter, they must have provoked a considerable reaction from owners. Mr Pittams attended the 2014 AGM, which Mr Hutton attended and took an active part in, to discuss the reports, including in particular his recommendations about remedial work. Mr Pittams’ presentation and the discussion it provoked must have been memorable. The reports were also discussed at the 2015 AGM, which both Mr and Mrs Hutton attended, including in the context of a discussion about a LTM plan which Mr Hutton took an active part in. Further, as I have said, Mr Hutton joined the Body Corporate committee at the 2015 AGM and became part of a sub- committee tasked with coming up with a LTM fund, which would have resulted in him being involved in further discussions about the 2014 reports.
[95] For these reasons, my conclusion is that the Soles’ misrepresentation claim based on the statements made by Mr Clarke during the sales process is made out.
[96] In view of this conclusion, I do not need to decide whether the statements that apartment 3A was a “superb apartment” and a “special gem” and the pre-contract disclosure statement also constituted misrepresentations.
Body Corporate remedial costs
[97] Both sides have approached damages on a cost of cure basis. Neither side led any valuation evidence. But otherwise, they are a long way apart on the Body Corporate remedial costs that should be recoverable as damages.
[98] As I have explained, the Soles’ claim is based on the costs that were actually incurred. The Body Corporate carried out the remedial work and then passed on a percentage of the costs to the Soles. The Soles’ claim is based on the cost that was passed on to them. The amount they claim is $1,154,306.92, including GST.
[99] The Huttons are highly critical of the Soles’ damages claim. They say that it is inflated because much of the costs being claimed relate to work that was unnecessary to remedy defects and damage, and because it does not have regard to betterment. They also say that the Soles should not be able to claim damages in relation to various items in respect of which it was disclosed during the sales process that remedial work would be needed. They also say that GST should be excluded. They say that the correct figure is, at most, $156,167.88, excluding GST.
[100] I should add that the Huttons’ expert building surveyor, Grant Hunt, suggested in his evidence that the Soles had largely failed to prove that the Belle Mer apartments suffered from any defects, but this position was not advanced by the Huttons in closing (rightly in my view). Rather, the focus was on the matters that I will now turn to:
(a)unnecessary work;
(b)betterment; and
(c)disclosed remedial works items.
Unnecessary work
[101] The Soles’ expert building surveyor, Roger Charnock, gave evidence that all the work undertaken by the Body Corporate was necessary to remedy defects and damage. However, the Huttons submit, based on evidence from Mr Hunt, that the work undertaken by the Body Corporate was well beyond the minimum work that was required to rectify the defects. In their closing submissions, they gave three examples.
[102] First, the corners of the Belle Mer were originally rounded. In the remedial works, the corners were squared up. Mrs Soles’ evidence was that she and her husband liked the rounded corners and wanted to keep them, but the owners were advised that
a significant amount of money could be saved by squaring them off. However, Mr Hunt’s evidence was that squaring off the corners would have significantly added to the cost.
[103] Second, all the bathrooms were replaced. Mr Hunt’s evidence was that this may not have been necessary. More testing should have been done to determine whether it was necessary to replace them all.
[104] Third, 100 per cent of the exterior timber on the top floor was replaced. Mr Hunt disputed whether all the timber needed replacement.
[105] Having formed the view that much of the work undertaken by the Body Corporate was unnecessary, Mr Hunt did not then analyse the amounts spent by the Body Corporate and make deductions in respect of each item of work that he considered to be unnecessary. Instead of engaging with the amounts claimed by the Soles, he started with a blank sheet of paper and worked out what he considered it ought to have cost to carry out only the work that he considered was necessary. An important consequence of Mr Hunt taking this approach is that there is no evidence in the case regarding the cost associated with each of the items of work that he considers was unnecessary.
[106] For example, the Huttons submit that the decision to square up the corners of the Belle Mer would have “significantly” added to the costs, but there is no evidence at all that quantifies the cost difference this decision made. The same is true of the decisions to replace all the bathrooms and 100 per cent of the exterior timber on the top floor.
[107] I can understand why Mr Hunt took this approach, but it is unfortunate that he did. As I pointed out during the trial, it leaves me in the difficult position of having to make a stark choice between Mr Charnock’s position or Mr Hunt’s position without any basis for taking a middle path between their two positions.
[108] I have decided to adopt the Soles’ position for the following reasons. First, the Body Corporate engaged reputable experts to assist them with the remediation works.
It is a reasonable assumption that these experts would not knowingly have advised the Body Corporate to carry out work that was unnecessary.
[109] Second, it is a reasonable assumption that the Body Corporate would have wanted to minimise the costs as much as possible and would have instructed the experts accordingly.
[110] Third, it was suggested that the owners of the Belle Mer might have taken the opportunity while the remedial work was being done to carry out other work that was unnecessary to remedy defects and damage but which would upgrade and improve the apartments. However, this is pure speculation. There is no evidence to support this contention.
[111] Fourth, Mr Charnock and Micah Simons (the Body Corporate’s quantity surveyor (QS) and the Soles’ expert QS) were involved during the remedial works process, whereas Mr Hunt was not instructed until after the works were complete.
[112] Fifth, Mr Charnock and Mr Simons provided lengthy reply briefs regarding the items that Mr Hunt said were unnecessary and this evidence was largely unchallenged in cross-examination.
[113] Sixth, under cross-examination, Mr Hunt (who was also the Huttons’ expert QS) accepted that much of the work he had contended was unnecessary was in fact necessary.
Betterment
[114] The Huttons’ position is that, when the remedial works were conducted, the various items that were subject to the remedial works were all at, or near, the end of their serviceable life. Thus, as a result of the remedial works, old items were replaced with new ones. This replacement of old items with new ones resulted in significant betterment.
[115] In general, the plaintiff has the onus of proof in relation to damages, but when it comes to betterment, the onus reverses.9
[116] The plaintiff must give credit for the value of any betterment, but only after allowance for any disadvantages associated with the untimely and unavoidable nature of the plaintiff’s expenditure.10
[117] The defendant must prove that the expenditure has left the plaintiff in a better position than the one in which it would have occupied if the breach had not occurred.
It is also for the defendant to prove the value and extent of the net betterment.11
[118] It may not be easy to precisely quantify the betterment. However, this should not result in the Court refusing to make a deduction for betterment. As with assessing the quantum of a plaintiff’s loss, the Court can take a “broad and robust judgment on the available evidence.”12 It may well involve the Court, having considered all the evidence, standing back and reducing the damages award by a percentage figure or a round sum.
[119] Gunton v Aviation Classics Ltd,13 Southland Indoor Leisure Centre Charitable Trust v Invercargill City Council,14 and White v Zadeh15 were all new for old betterment cases. In the first two cases, the damages were reduced by five per cent for betterment. In the third, $100,000 was deducted from a sum of $520,000 to come up with a damages figure of $420,000.
[120] Mr Hunt gave evidence for the Huttons on betterment. His approach was to determine the life expectancy of each of the items repaired (eg, Butynol roof membrane, aluminium joinery, and cladding) and to compare that with the age of each
9 J & B Caldwell v Logan House Retirement Home Ltd [1999] 2 NZLR 99 (HC) at 108–110.
10 At 106–108; Gunton v Aviation Classics Ltd [2004] 3 NZLR 836 at [213]; Invercargill City Council v Southland Indoor Leisure Centre Charitable Trust [2017] NZCA 68, [2017] 2 NZLR 650 at [151].
11 J & B Caldwell v Logan House Retirement Home Ltd, above n 9, at 108–111.
12 At 113; Invercargill City Council v Southland Indoor Leisure Centre Charitable Trust, above n 10, at [152]–[153] and [156].
13 Gunton v Aviation Classics Ltd, above n 10.
14 Southland Indoor Leisure Centre Charitable Trust v Invercargill City Council [2015] NZHC 1983.
15 White v Zadeh [2020] NZHC 3221.
item at the date of the repairs. By making this comparison, he came up with a percentage betterment deduction for each item.
[121] For example, Mr Hunt said that the life expectancy of the aluminium joinery was 30 years. The joinery was 23 years old. Hence, it had achieved 76.7 per cent of its life. His figure for the Soles’ share of the cost of replacement of the joinery was
$54,120.60. He then reduced this by 76.7 per cent on account of betterment. The result was $12,628.14.
[122] Mr Hunt carried out this same exercise for each of the items of repair in his damages calculation and then added the resulting figures together to come up with his final damages figure.
[123] The life expectancies used in Mr Hunt’s analysis, which were accepted by Mr Charnock under cross-examination, range from 10 to 30 years. The life expectancies for some key items are 20 years for Butynol roof membrane, 30 years for aluminium joinery, and 20 years for cladding. The Belle Mer was over 20 years’ old at the time of the repair. As a result, Mr Hunt’s approach results in a steep reduction of around 60 per cent for betterment.
[124] In Southland Indoor Leisure Centre Charitable Trust v Invercargill City Council, the Trust received a new stadium in place of a 10-year-old one. The Council used an approach that appears to have been similar to the one used by Mr Hunt to quantify betterment. This resulted in a roughly 10 per cent deduction. However, the High Court considered that this approach might be appropriate with a normal commercial building but it was not appropriate on the particular facts of the case. This was because the Trust leased the stadium to the Council, and under the terms of the lease between the Trust and the Council, the Trust received no benefit simply because it had a newer, and therefore more valuable, building. However, the Court did accept that the Trust would receive a benefit in the form of a reduction in the maintenance costs because it would be cheaper to maintain a new building than a 10-year-old one. The evidence of the likely maintenance costs was not considered to be reliable. As a result, the Court was compelled to take a “more impressionistic” approach to
quantifying betterment. As I have said above, the result was a reduction of five per cent.16 The High Court’s approach to betterment was upheld by the Court of Appeal.17
[125] The Soles do not propose any alternative approach to determining the amount of betterment. They point to the loss of use of their apartment for two-and-a-half years while continuing to have to pay body corporate fees, insurance and rates as examples of inconvenience and loss suffered. However, they did not lead any evidence from which I could calculate an allowance for any disadvantages associated with the untimely and unavoidable nature of their expenditure. They simply assert that no betterment reduction should be made. Alternatively, they say, if there is to be a reduction, it should be limited to five per cent as in Gunton and Southland Indoor Leisure Centre, but they provide no explanation as to how they reach that number.
[126] As I have explained, the High Court in Southland Indoor Leisure Centre case considered that an approach similar to the one used by Mr Hunt may be appropriate with a normal commercial building. However, I have real concerns about adopting that approach in this case.
[127] Mr Hunt’s approach suggests to me that it is likely that there is significant betterment in this case, but I have real doubts whether Mr Hunt’s approach captures the amount of the betterment. I think it is likely that the actual amount is significantly less than Mr Hunt’s analysis suggests.
[128] The purpose of the exercise is to calculate the amount by which the property, after repair, is more valuable than beforehand.18 It is not clear to me that this is what Mr Hunt’s approach does.
[129] In my view, the right way to assess betterment in a case like this is through expert valuation evidence. What is needed is a comparison of the value of the property
16 Southland Indoor Leisure Centre Charitable Trust v Invercargill City Council, above n 14, at [189], [191], [202], [204], [208], [209], [213] and [217].
17 Invercargill City Council v Southland Indoor Leisure Centre Charitable Trust, above n 10, at [146]–[157].
18 James Edelman McGregor on Damages (22nd ed, Sweet & Maxwell, London, 2024) at [2.008]; SM Waddams The Law of Damages (5th ed, Canada Law Book, Toronto, 2012) at [1.2730]– [1.2800].
as it was before the repairs, but on the assumption that it did not leak, with the value as it is after the repairs.19 It seems likely to me that this approach would result in a different, and less extreme, outcome than the one produced by Mr Hunt’s approach.
[130] The absence of evidence of the kind I have referred to leaves me in a difficult position. I have considered whether in the circumstances the conclusion I should reach is that the Huttons have failed to establish betterment. This is the conclusion the High Court reached in La Grouw v Cairns, but in that case the alternative evidence that the defendant relied on to advance a betterment argument had no merit at all and the Court may also have been influenced by the fact that the case involved much smaller sums of money than here.20
[131] In the end, I have decided that the best course is for me to take the kind of broad, robust and more impressionistic approach taken in the cases I have referred to. The conclusion I have reached is that the damages should be reduced by 30 per cent for betterment. I have arrived at this figure by starting with Mr Hunt’s 60 per cent and then discounting it by half in view of the uncertainty about the reliability of his approach that I have explained and to make allowances for the Soles’ disadvantage associated with the untimely and unavoidable nature of their expenditure.
Disclosed remedial works items
[132] The Huttons say that the Soles should not be able to claim damages in relation to the various items in respect of which it was disclosed during the sales process that remedial work would be needed.
[133] The first of these is the roof. The Huttons say it was disclosed during the sale process that there had been a roof repair in 2016 (as I have explained, a new membrane was overlayed on the existing one) but it was only a temporary fix, and it was thought that this would extend the life of the roof by five to 10 years from 2016. On this basis, the Huttons submit that the Soles knew that the roof would need to be replaced
19 La Grouw v Cairns (2004) 5 NZCPR 434 (HC) at [48]–[49].
20 At [46] and [50]–[52].
at roughly the same time that it actually ended up being replaced in the remedial works by the Body Corporate.
[134] (As it transpired, the roof replacement undertaken by the Body Corporate as part of the remedial works ended up being much more expensive than was expected. It was thought that it would simply involve replacing the existing Butynol membrane on the roof (both the original membrane and the overlay) and applying a new membrane. However, as it transpired the whole roof structure had to be removed and replaced. This was as a result of fire safety requirements that were triggered by the remedial works.)
[135] It is true that Mrs Sole accepted in cross-examination that they were told by Mr Hutton that the roof would need to be replaced within five or seven years of 2019. However, Mr Hutton’s evidence is that the discussion about the roof occurred in April 2019, shortly before settlement in May 2019. Thus, it occurred at a time when the Soles were already contractually bound to purchase the apartment. For this reason, I do not see how this can have any impact on the damages the Soles are entitled to claim.
[136] The Huttons say that it was also disclosed to the Soles that they would need to replace deck tiles and upgrade joinery. It is true that the Soles raised with Mr Clarke the possibility that they might want to replace deck tiles and upgrade joinery. They wanted to know if they would be able to do this work under Body Corporate rules. However, all this shows is that the Soles thought they might want to make improvements to the apartment. Again, I do not see how this could have any impact on their damages claim.
GST
[137] The Huttons argue that any damages award ought to exclude GST as the Body Corporate should be able to claim back the GST it has paid on the remedial work and provide a credit to the Soles on account of the GST component of the invoices they have paid. However, if the Body Corporate can claim back the GST it has paid (as input tax), that will only offset the GST the Body Corporate has collected from unit owners (as output tax). It will not offset the GST the Soles have paid personally. The
Soles will still have to bear the economic burden of the GST they have paid personally. Therefore, the Soles’ damages claim should include GST.
Conclusion
[138] The Soles seek to recover Body Corporate remedial cost that they have paid of $1,154,306.92 including GST. In my view, this figure should not be reduced because it included payment for work that was allegedly unnecessary or for disclosed remedial work items. I also consider that GST should not be deducted. However, in my view, the figure should be reduced by 30 per cent for betterment. This reduces the amount that the Soles can recover from the Huttons to $808,014.84.
Kitchen replacement costs
[139] A list of the costs that the Soles have paid appearing in Mrs Sole’s brief includes the kitchen replacement costs of $97,042.67. But the relevant invoices and proof of payment were not included in the common bundle. On that basis, the Huttons submit that the Soles failed to prove that they incurred these costs. However, the relevant invoices were discovered and Mrs Sole’s evidence that they paid the costs was not challenged in cross-examination. I therefore accept that the costs were incurred.
[140] Again, there should be a reduction for betterment. Mr Hunt’s evidence was that a life expectancy of a kitchen is 25 years. The kitchen was installed in 2011. Therefore, on Mr Hunt’s approach, there should be a reduction of approximately 40 per cent for betterment. In my view, the reduction should be 20 per cent. This reduces the amount that the Soles can recover to $77,634.14.
Alternative accommodation costs
[141] The Soles were unable to live in apartment 3A for around two-and-a-half years while the remedial works were undertaken. During that time, they lived on their boat and incurred alternative accommodation costs, in the form of marina berth charges, of
$50,697.50.
[142] At the time apartment 3A was sold, under Body Corporate rules, the apartments were visitor accommodation only and could not be used by owners as their place of residence. This was disclosed to the Soles in the Bayleys property pack relating to the apartment. The Soles also discussed the restriction with Mr Clarke. On this basis, the Huttons say that this head of loss is too remote.
[143] However, I disagree. It was reasonably foreseeable that the Body Corporate rules could change, and that is in fact what happened. I would add that the amount that the Soles could have made had they been able to rent out apartment 3A to visitors over the two-and-a-half-year period is likely to have significantly exceeded
$50,697.50.
Furniture removal costs
[144]The Huttons did not dispute the furniture removal costs of $460.
General damages
[145] The Soles seek general damages of $35,000 for stress, anxiety and inconvenience. Mrs Sole gave evidence as to the huge toll the remedial works have taken on herself and Mr Sole. Her evidence was not challenged, and I accept it.
An award of $35,000 would not be out of line with previous cases.21
[146] The Huttons submit that general damages of $15,000 should be awarded. They submit that the stress and anxiety that the Huttons have experienced has primarily arisen out of their inability to live at apartment 3A, and, as I have explained, under Body Corporate rules they were not permitted to live at the apartment. Therefore, the Huttons say the general damages should be reduced.
[147] However, as I have also explained, I do not accept that it was not reasonably foreseeable that the Body Corporate rules could change. I uphold the Soles’ claim for
$35,000.
21 Body Corporate 346799 v KNZ International Co Ltd [2017] NZHC 511 at [104].
Summary on damages
[148]I have concluded that the Huttons should pay the Soles damages totalling
$926,806.48 made up of:
(a)Body corporate remedial costs — $808,014.84.
(b)Kitchen replacement costs — $77,634.14.
(c)Alternative accommodation costs — $50,697.50.
(d)Furniture removal costs — $460.
(e)General damages — $35,000.
(f)Less settlement sum — $45,000.
JLTS’s limitation of liability
[149] Under cl 18.1(2) of the SPA, JLTS’s liability is “limited to the actual amount recoverable from the assets of the trust from time to time”.
[150] There is evidence that, at the end of the financial year in which the sale and purchase occurred (the year ended 31 March 2019), the Hutton Trust had assets of about $8 million. As this amount far exceeds the damages claimed by the Soles, they submit that cl 18.2(2) has no impact on JLTS’s liability.
[151] However, the clause is not concerned with the assets of the Trust at the time of the sale and purchase. It is concerned with the assets that exist at the time of enforcement. That will not be known until enforcement occurs.
Interest and costs
[152] The Soles seek and are entitled to interest under the Interest on Money Claims Act 2016.
[153] I invite the parties to try to reach agreement on the interest that is payable, and on costs.
[154]If the parties cannot agree on interest and costs, I direct that:
(a)the Soles file a memorandum of no more than three pages within 20 working days of the date of this judgment; and
(b)the Huttons file a memorandum in response of no more than three pages within a further 10 working days.
[155]I will then resolve matters on the papers.
Result
[156] I give judgment for the Soles against the Huttons in the sum of $926,806.48, with the proviso that the liability of JLTS is limited to the actual amount recoverable from the assets of the Hutton Trust.
[157] I also order the Huttons to pay the Soles interest under the Interest on Money Claims Act.
[158]The amount of interest to be paid is to be determined, as is costs.
Blanchard J
0
9
1