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Wrenn v Boughen

Wrenn v Boughen

Case [2023] NZHC 2494 6 September 2023

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-000326

[2023] NZHC 2494

BETWEEN
PHILIPPA DALE WRENN MATTHEW NIGEL WRENN

and JOHN BAIRD CAMPBELL as Trustees of the Philippa Wrenn Family Trust
Plaintiffs

AND

BRENDA ANN BOUGHEN and BARRY SCOTT DAVEY

Defendants

Hearing:
13–24 February 2023, 1–2 March 2023 (submissions 21 March

2023) and 28 April 2023

Appearances:

P H Bremer and S C Howard-Brown for Plaintiffs T G H Smith and H Z Yang for Defendants

Judgment:

6 September 2023

JUDGMENT OF GENDALL J

WRENN v BOUGHEN [2023] NZHC 2494 [6 September 2023]

Table of Contents [Para]

Introduction[1]
Factual background[6]
The parties[6]
The Property[8]
Ms Boughen’s ownership of the Property[16]
The sale process[17]
The Building Report[18]
The Alterations Email[25]
The Property Advertisement[26]
The sale to the plaintiffs[27]
Post-settlement – Discovery of Alleged Defects[39]

Causes of action [51]

The trial and the evidence[53]
First cause of action - Misrepresentation[57] General misrepresentations relating to alleged water ingress issues and associated building works issues[73]
Misrepresentation relating to alleged fire damage in the roof ceiling and wall space[107]

Second cause of action – breach of contractual warranty in the SPA [123]

Third and fourth causes of action – mistake[145]
Common mistake[150]
Unilateral mistake[169]
Relief and quantum[170]

Affirmative defences [185]

Contributory negligence[186]
Betterment[189]
Failure to mitigate loss[193]
Voluntary assumption of risk[196]
Result[201]
Costs[204]

Introduction

[1] The plaintiffs, as purchasers of a residential property at 33 Maarama Crescent, Te Aro, Wellington (the Property) bring this proceeding against the defendants as previous owners and vendors. In their claim, the plaintiffs essentially seek under their Second Amended Statement of Claim something in excess of $800,000 by way of damages for alleged failures to disclose various matters about a 110-year-old timber dwelling on the Property sold to the plaintiffs in 2014.

[2] The plaintiffs say their claim here stems largely from two critical matters relating to the Property, discovered post-settlement of their purchase. The first is what is said to be the discovery of leaks in the western wall of the dwelling, four years after the purchase from the defendants was settled. This claim follows subsequent decisions taken by the plaintiffs essentially to replace that wall, along with an adjoining deck, and the entire lower level and foundations of the house in addition to other alterations.

[3] The second matter stems from the subsequent discovery, some six years after settlement, of allegedly concealed and undisclosed fire damage to the roof/ceiling cavity in the dwelling.

[4] The plaintiffs’ theory of the case is that: the first named plaintiff, Philippa Dale Wrenn (Ms Wrenn) was induced to enter into the purchase contract for the Property, based on the express and/or implied representations made by the first named defendant, Brenda Ann Boughen (Ms Boughen) as to the quality and soundness of the house. It is said those representations amounted to misrepresentations as they were false as outlined in the pleaded reasons in the statement of claim, and as a result the plaintiffs…

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 Wrenn v Boughen

Details

AGLC: Wrenn v Boughen [2023] NZHC 2494
Case: [2023] NZHC 2494
Decision Date: 6 September 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiffs, Philippa Dale Wrenn, Matthew Wrenn, and John Campbell, as trustees of the Philippa Wrenn Family Trust, brought a claim against the defendants, Brenda Ann Boughen and Barry Scott Davey, as trustees of the Boughen family trust. The plaintiffs sought damages exceeding $800,000 for alleged failures to disclose various matters about a 110-year-old timber dwelling on the Property sold to the plaintiffs in 2014. The plaintiffs claimed that they discovered leaks in the western wall of the dwelling, four years after the purchase from the defendants was settled. They also claimed that there was concealed and undisclosed fire damage to the roof/ceiling cavity in the dwelling, discovered some six years after settlement. The plaintiffs' theory of the case was that Ms Wrenn was induced to enter into the purchase contract for the Property based on the express and/or implied representations made by Ms Boughen as to the quality and soundness of the house. The defendants strongly opposed the present claim, stating that no actionable misrepresentations occurred and that the plaintiffs sought to place all the costs of the repair and upgrade of the house they chose to do, as well as consequential loss and general damages, on the defendants.

The court found that the plaintiffs had not established a case of misrepresentation or breach of warranty, as the defendants did not make any actionable misrepresentations. However, the court found that there was a common mistake concerning the fire damage to the roof ceiling and wall areas of the house. The plaintiffs and the defendants were both influenced by the same mistake to enter into the Sale and Purchase Agreement (SPA) and the mistake resulted in a substantially unequal exchange of values. The court granted relief for common mistake and ordered the defendants to pay to the plaintiffs an amount being the difference in value in August 2014 between the Property in its fire damaged state and its value if it had been in an undamaged state, which was broadly assessed at $130,000, and interest on that sum pursuant to the Interest on Money Claims Act 2016 from August 2014 until such time as the judgment debt is fully paid. Costs were reserved, and the parties were expected to agree on costs based on the findings in the judgment.

Orders