Weber v Hastings District Council - [2022] NZHC 1405

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2020-441-11 [2022] NZHC 1405

BETWEEN
TONY GRAHAM WEBER,

ROBYN DELLE WEBER and

LDP TRUSTEES NO. 4 as trustees of the Fairview Trust

Plaintiffs

AND

HASTINGS DISTRICT COUNCIL

First Defendant

DONALD CHARLES GILBERTSON and MURRAY GEORGE GILBERTSON as

trustees of the Peak Performance Trust Second Defendant

TREMAIN REAL ESTATE

Third Defendant

JILL BADDELEY

Fourth Defendant

MURRAY PRINGLE and GEOFF ROTHWELL

Fifth Defendant

Hearing: 12 May 2022

Appearances:

P Drummond for the Plaintiffs/Respondents

A Challis and L Fernandez for Third and Fourth Defendants/ Applicants

Judgment:

15 June 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

WEBER v HASTINGS DISTRICT COUNCIL [2022] NZHC 1405 [15 June 2022]

Introduction

[1] This is an interlocutory application by the third and fourth defendants pursuant to r 15.1 of the High Court Rules 2016, for an order striking out the plaintiffs’ claims against them.

[2] Under r 15.1, the Court may strike out a pleading that does not disclose a reasonably arguable cause of action. Counsel were on common ground as to the principles applying to applications to strike out pleadings on this basis. In an application made by a defendant, the essential issue is whether, assuming the plaintiff will be able to establish the facts as pleaded, the defendant can satisfy the Court that the plaintiff cannot succeed on the claim or the relevant cause or causes of action. The jurisdiction is exercised sparingly, for the obvious reason that the Court is dealing summarily with a substantive matter. So, it must be clear that the claim or cause of action, as the case may be, cannot succeed.1

Background

[3] In mid-2015, the second defendants, Donald and Murray Gilbertson, in their capacities as the trustees of the Peak Performance Trust, resolved to sell a residential property situated at 192 Te Mata Peak Road in Havelock North.

[4] They engaged a local real estate agency, the third defendant, Tremain Real Estate (2012) Ltd, to act for them. The responsible agent was the fourth defendant, Jill Baddeley. On 17 July 2015, the vendors and Tremain Real Estate entered into an agency agreement in which the former represented to the latter that they were unaware of any past or present weathertightness issues affecting the property, and undertook to disclose details of any such issues that they became aware of between the date of listing and the date of sale. As will become apparent, the representation as to their knowledge of any past weathertightness issues was clearly incorrect.

[5] Ms Baddeley arranged an open home on 16 August 2015. Amongst those who attended the open home were Tony and Robyn Weber, the first and second-named

1 Couch v A-G [2008] NZSC 45 at [33].

plaintiffs, and two of the trustees, along with L D P Trustees No. 4 Ltd, of the Fairview Trust.

[6] Seemingly at the request of Mr and Mrs Weber, under cover of an email dated 19 August 2015, Ms Baddeley sent certain…

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: [2022] NZHC 1405
Decision Date: 15 June 2022

CaseChat Overview and Summary

The case of Weber v Hastings District Council involved an interlocutory application brought by the third and fourth defendants, Tremain Real Estate and Jill Baddeley, seeking to have the plaintiffs' claims against them struck out. The plaintiffs, Tony and Robyn Weber, sought damages for alleged defects in a property they purchased, claiming that the defendants misrepresented the property’s condition through the documentation they provided. The defendants argued that they were merely conduits for the information provided by the vendors and could not be held liable for any misrepresentations.

The legal issues before the court were whether the plaintiffs' claims against the third and fourth defendants disclosed a reasonably arguable cause of action, and whether the defendants could be held liable for any misrepresentations made through the documentation they provided. The court considered the principles established in relevant case law, including Goldsbro v Walker and Red Eagle Corporation Ltd v Ellis, and determined that the defendants were acting as mere conduits for information provided by the vendors. As such, the defendants could not be held liable for any misrepresentations contained in the documentation, as the liability would lie with the vendors who made the representations.

The court found that the plaintiffs could not succeed on any of the causes of action pleaded against the third and fourth defendants, and made an order striking out the claims against them pursuant to r 15.1 of the High Court Rules 2016. The court reserved costs pending an agreement between counsel, with a preliminary view that the successful defendants were entitled to a costs award on a 2B basis.

Orders