Tippen v Spark - [2025] NZHC 1425

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-594

[2025] NZHC 1425

BETWEEN SIMON MARK TIPPEN and LISA JANE TIPPEN
Plaintiffs

AND

MICHELE KELLY SPARK

Defendant

Hearing: 26 May 2025

Appearances:

M S Henderson and M R Gibson for Plaintiffs R J H Scott for Defendant

Judgment:

3 June 2025

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 3 June 2025 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

TIPPEN v SPARK [2025] NZHC 1425 [3 June 2025]

[1] Mrs Spark agreed to purchase at auction Mr and Mrs Tippens’ property at Waikuku Beach. She was at the time suffering mental health issues, but this was not known by Mr and Mrs Tippen or their real estate agent. The parties entered into a written agreement for the sale on a standard REI-ADLS form. Mrs Spark failed to settle. Following the expiry of a settlement notice Mr and Mrs Tippen cancelled the agreement.

[2] Mr and Mrs Tippen seek summary judgment for damages. Mrs Spark accepts the agreement cannot be avoided due to her illness and has admitted liability. However, she disputes the quantum of Mr and Mrs Tippens’ claim in one respect.

[3] The issue is whether Mr and Mrs Tippen are entitled to the loss on the resale of the property measured against either the contract price or the property’s market value on the date of the auction. The issue arises because Mrs Spark contends the market value was significantly lower than the contract price and that she paid too much for the property because her judgement was impaired. In other respects, Mr and Mrs Tippens’ losses are accepted.

Background

[4] In December 2023 Mr and Mrs Tippen engaged Harcourts Real Estate Agency Four Seasons Realty 2017 Ltd to market their Waikuku Beach property for sale by auction.

[5]Mrs Spark and her husband viewed the property on 14 January 2024.

[6]The property was put up for auction on 31 January 2024.

[7] Mrs Spark attended the auction with her son. There was competitive bidding for the property between Mrs Spark and another person. The property was sold to Mrs Spark for $606,000. The other bidder placed a final bid of $599,000 before withdrawing from the contest.

[8] Mrs Spark signed an agreement for sale and purchase of the property after the auction and paid $10,600 towards the deposit of $60,060 that day, promising to pay the balance shortly thereafter.

[9] The agreement was in the REI-ADLS Particulars and Conditions of Sale of Real Estate by Auction 6th edition 2022 (2) form. The relevant terms were:

(a)a contract price of $606,000 inclusive of GST (if any);

(b)the settlement date was 16 February 2024;

(c)the interest rate for late settlement was 16 per cent per annum;

(d)Mrs Spark was required to pay a deposit of 10 per cent of the purchase price immediately upon completion of the auction;

(e)on the settlement…

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 Tippen v Spark

Details

AGLC: Tippen v Spark [2025] NZHC 1425
Case: [2025] NZHC 1425
Decision Date: 3 June 2025

CaseChat Overview and Summary

The plaintiffs, Simon Mark Tippen and Lisa Jane Tippen, sought summary judgment against the defendant, Michele Kelly Spark, for losses incurred after she failed to settle on the purchase of their property at Waikuku Beach. The defendant agreed to purchase the property at auction for $606,000, but she did not settle, leading the plaintiffs to cancel the agreement and resell the property for $485,000. The sole issue before the court was whether the plaintiffs' loss should be measured against the contract price or the market value of the property at the date of the auction.

The court considered the principles governing summary judgment, particularly whether the defendant had any arguable defence to the claim. The defendant argued that the contract price was excessive and that assessing damages against it would result in an unjust outcome. She cited authorities suggesting that damages should reflect the actual loss suffered by the innocent party. However, the court held that the contract price was the proper measure of damages for breach of contract, as established in the authorities and under the terms of the agreement itself. The court found that the contract explicitly provided for damages to be assessed against the contract price, and that market value at the date of the agreement was not relevant.

The court rejected the defendant's argument that the contract price did not reflect market value at the auction, noting that another bidder was willing to pay a similar amount. The court also found that the authorities cited by the defendant did not support the proposition that damages could be assessed based on what might be considered just in all the circumstances. The court concluded that the defendant had no valid defence to the plaintiffs' claim and that summary judgment should be granted in favour of the plaintiffs.

Accordingly, the plaintiffs were awarded damages for the difference between the contract price and the resale price, costs of resale, holding costs, and interest. The plaintiffs were also awarded costs and reasonable disbursements. The defendant was ordered to pay the plaintiffs $114,450.72 plus interest and costs.

Orders