Tadd Management Limited v Weine - [2023] NZHC 3300

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-781

[2023] NZHC 3300

UNDER sections 24–30 and 35 of the Contract and Commercial Law Act 2017

IN THE MATTER OF

the property at 134 Queens Drive, Lower Hutt

BETWEEN

TADD MANAGEMENT LIMITED

Plaintiff

AND

RUTH RENTON WEINE and MICHAEL

DAVID HOFMANN-BODY as trustees of the Ruth Weine Family Trust
Defendants

AND

NEW ZEALAND CONSULTING ENGINEERS LIMITED

Third Party

On the Papers

Counsel:

F B Collins for the Plaintiff

M R C Wolff for the Defendants

Judgment:

21 November 2023

JUDGMENT OF GWYN J

(Application for stay of enforcement of judgment)

Solicitors:
Gibson Sheat Lawyers, Wellington Morrison Kent, Wellington

TADD MANAGEMENT LTD v WEINE [2023] NZHC 3300 [21 November 2023]

Introduction

[1] This proceeding arose out of the purchase by the plaintiff, TADD Management Ltd (TADD), of a commercial building in Lower Hutt in December 2017 (property). The vendors of the building were Ruth Weine and Michael Hofmann-Body, as trustees of the Ruth Weine Family Trust (Trust). TADD’s claim was that it relied on representations by the vendors as to the seismic rating of the property. An Initial Seismic Assessment (ISA) provided by the vendors assessed the building as having a 60%NBS (New Building Standard) rating. Subsequently, TADD obtained two Detailed Seismic Assessments (DSAs), the first of which assessed the property at 10%NBS and the second at 30%NBS.

[2] TADD brought claims against the vendors in misrepresentation and/or common mistake. The vendors, in turn, claimed against the engineering firm that had provided the initial ISA, alleging breach of contract, negligence and breach of the Fair Trading Act 1986.

[3] In my judgment of 5 April 2023 (judgment),1 I found for the plaintiff against the defendants, in both misrepresentation and common mistake. I dismissed the defendants’ claims against the third party.

[4] The judgment awarded the plaintiff $609,842.40, together with costs and interest (judgment sum). Costs were subsequently awarded2 to the plaintiff on a 2B scale basis.

Application to stay enforcement of judgment

[5] By application of 23 May 2023 the defendants sought a stay of the judgment on the basis that they have lodged a notice of appeal against the judgment, their appeal will be rendered nugatory if the stay is not granted, and the plaintiff and the third party will not be injuriously affected by the judgment being stayed until resolution of the appeal.

1 TADD Management Ltd v Weine [2023] NZHC 764.
2 TADD Management Ltd v Weine [2023] NZHC 2573; and see also TADD Management Ltd v Weine
[2023] NZHC 1968.

[6]The application for a stay is opposed by the plaintiff.

[7] For the reasons set out in my minute of 13 October 2023,3 there was a considerable delay in the application coming before me. As a result of that delay, it was not possible to afford the parties an oral hearing of the application and I have dealt with it on the basis of…

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.

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Details

Case: [2023] NZHC 3300
Decision Date: 21 November 2023

CaseChat Overview and Summary

In the High Court of New Zealand, TADD Management Ltd initiated proceedings against Ruth Renton Weine and Michael David Hofmann-Body, as trustees of the Ruth Weine Family Trust, regarding the sale of a commercial property at 134 Queens Drive, Lower Hutt. TADD alleged that the defendants misrepresented the seismic rating of the property, leading to substantial remediation costs. The defendants counterclaimed against New Zealand Consulting Engineers Limited, alleging breach of contract, negligence, and breach of the Fair Trading Act 1986. The court found in favour of TADD on both misrepresentation and common mistake, awarding damages of $609,842.40, costs, and interest. The defendants then sought a stay of enforcement of the judgment pending their appeal.

The primary legal issue was whether the court should grant a stay of enforcement of the judgment pending the appeal. The defendants argued that the appeal would be rendered nugatory if the stay was not granted due to concerns about TADD's solvency, given its association with a company in liquidation. They also highlighted the novelty of the issues regarding seismic assessments and their public importance. TADD opposed the stay, asserting that there was no evidence to support the defendants' solvency concerns and that the balance of convenience favoured denying the stay due to the significant costs incurred.

The court balanced the principles of not depriving the successful litigant of the fruits of its litigation against not depriving the appellant of the fruits of a successful appeal. Considering factors such as the strength of the appeal, the risk of rendering the appeal nugatory, and the potential prejudice to TADD, the court concluded that the overall balance of convenience weighed against granting a stay. The court found that TADD's commitment to repay the judgment sum if the appeal was successful provided adequate assurance, and the risk of prejudice to TADD due to the substantial remediation costs it had already incurred was significant. Consequently, the application for a stay of enforcement of the judgment was dismissed, and TADD was entitled to immediate payment of the judgment sum without condition.

Orders