Legal Research
Cases
Vining Realty Group Ltd v Moorhouse

Vining Realty Group Ltd v Moorhouse

Link copied

Case Copied 29 March 2010 64 min read

Contents

On this page

IN THE COURT OF APPEAL OF NEW ZEALAND
CA438/2008
CA213/2009
[2010] NZCA 104
BETWEENVINING REALTY GROUP LIMITED

Appellant

ANDD S AND J W MOORHOUSE

First Respondents
ANDGASCOIGNE WICKS

Second Respondent
ANDMARLBOROUGH DISTRICT COUNCIL

Third Respondent
ANDALTIMARLOCH JOINT VENTURE LIMITED

Fourth Respondent

CA448/2008
CA215/2009

AND BETWEEN MARLBOROUGH DISTRICT COUNCIL

Appellant

ANDALTIMARLOCH JOINT VENTURE LIMITED

First Respondent
ANDD S AND J W MOORHOUSE

Second Respondents
ANDVINING REALTY GROUP LIMITED

Third Respondent
ANDGASCOIGNE WICKS

Fourth Respondent

CA214/2009

AND BETWEEN GASCOIGNE WICKS

Appellant

ANDD S AND J W MOORHOUSE

First Respondents
ANDVINING REALTY GROUP LIMITED

Second Respondent
ANDALTIMARLOCH JOINT VENTURE LIMITED

Third Respondent
ANDMARLBOROUGH DISTRICT COUNCIL

Fourth Respondent

Hearing:18 and 19 November 2009

Court:William Young P, Hammond and Robertson JJ
Counsel:M R Ring QC and A B Darroch for Vining Realty Group Limited

T C Weston QC for Mr and Mrs Moorhouse
D J Goddard QC and M J Radich for Marlborough District Council
M Casey QC and R M Dunningham for Altimarloch Joint Venture Limited
F B Barton and M B Couling for Gascoigne Wicks

Judgment:29 March 2010 at 3.30 pm

JUDGMENT OF THE COURT

AThe appeal of the MDC is allowed to the extent that the judgment against it in favour of the Moorhouses is reduced to $62,500.
BThe appeal by Vining is allowed to the extent that the apportionment of liability between it and Gascoigne Wicks is altered from 80:20 to 60:40.
CThe orders for costs in the High Court are varied to reflect differences in the effective proportions of the ultimate liability to AJVL which are to be borne by Vining, Gascoigne Wicks and the MDC.
DThe appeals are otherwise dismissed.
EIn this court there is no award of costs either way in respect of the MDC (which has been partly but not completely successful).
FVining and Gascoigne Wicks are to pay to AJVL costs and disbursements for a complex appeal on a band B basis and usual disbursements (apportioned as to 60% to Vining and 40% to Gascoigne Wicks).
GVining is to pay the Moorhouses their costs of and relating to the appeal (including disbursements) as fixed on an actual solicitor and client basis to be agreed between the parties and in default of agreement fixed by the Registrar.

___________________________________________________________________
REASONS OF THE COURT
(Given by William Young P)
Table of Contents
Para No

Introduction  [1]
How the problem arose  [10]
The mistaken belief of the Vining staff that the original water
permits were still available  [10]
Misrepresentations made by Vining agents as to the water permits  [18]
The failure by Gascoigne Wicks to make appropriate inquiries
as to the available water entitlements  [19]
The terms of the agreement  [21]
The approval of the agreement by the solicitors  [26]
Due diligence  [29]
What happened on settlement  [34]
Missed warning signals  [36]
The liability of the Moorhouses to AJVL  [37]
Overview  [37]
Did the agents of the Moorhouses misrepresent the
position as to the water entitlements?  [39]
Was AJVL induced to enter the contract as a result?  [45]
The quantum…

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.

Keep reading for free

Create a free CaseChat account to read Vining Realty Group Ltd v Moorhouse and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] NZCA 104
Decision Date: 29 March 2010

CaseChat Overview and Summary

The Court of Appeal allowed the appeal by the Marlborough District Council (MDC) in part and dismissed it in part. The court upheld the judgment against the MDC in favour of Altimarloch Joint Venture Ltd (AJVL) but reduced the amount to $62,500. The court also allowed the appeal by Vining Realty Group Ltd (Vining) in part and dismissed it in part. The court altered the apportionment of liability between Vining and Gascoigne Wicks from 80:20 to 60:40. The court varied the orders for costs in the High Court to reflect the differences in the effective proportions of the ultimate liability to AJVL which are to be borne by Vining, Gascoigne Wicks and the MDC. The court dismissed the appeals in all other respects. The court did not award costs either way in respect of the MDC as it had been partly but not completely successful. Vining and Gascoigne Wicks were to pay to AJVL costs and disbursements for a complex appeal on a band B basis and usual disbursements (apportioned as to 60% to Vining and 40% to Gascoigne Wicks). Vining was to pay the Moorhouses their costs of and relating to the appeal (including disbursements) as fixed on an actual solicitor and client basis to be agreed between the parties and in default of agreement fixed by the Registrar.

Orders