WALKER & ORS V BALE & ORS HC AK CIV-2008-044-2721

WALKER & ORS V BALE & ORS HC AK CIV-2008-044-2721

Application to strike out was dismissed because the issues raised (scope and application of the exclusion clause under s4 Contractual Remedies Act, reliance, and limitation including effect of Building Act s393) depended on contested facts and a weighing of circumstances that could not properly be resolved on a strike out application; defendants failed to show the causes of action were plainly doomed to fail.

Citation
openlaw-254c7f33_0238_46d4_8e68_63c07d8fd7af.pdf
Parties
Plaintiffs: Isobel Anne Walker; Alison Claire MacMillan; Diane Wardill as trustees of the Sciwi Family Trust; First Defendants: Ronald Frank Bale; Joan Norma Bale; Second Defendants: Ronald Frank Bale; Joan Norma Bale as trustees of the Bale Family Trust of Auckland
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 July 2012
Procedural Posture
Civil / Interlocutory Strike Out Application
Outcome
Strike out application dismissed
Legal Topics
Misrepresentation, Negligence, Nuisance, Limitation, Contractual Exclusion Clauses, Statutory Limitation (building Act S393)
Contract Tort Property Law Civil Procedure Building Law Misrepresentation Negligence Nuisance +3 more

Case Brief

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Parties

Isobel Anne Walker; Alison Claire MacMillan; Diane Wardill as trustees of the Sciwi Family Trust

Plaintiffs

Ronald Frank Bale; Joan Norma Bale

First Defendants

Ronald Frank Bale; Joan Norma Bale as trustees of the Bale Family Trust of Auckland

Second Defendants

Procedural Posture

Civil / Interlocutory Strike Out Application

Legal Issues

  1. 1 Whether clause 12.2(4) of the sale agreement excludes claims for pre-contractual representations and whether s4 Contractual Remedies Act permits court to go behind that clause
  2. 2 Whether plaintiffs relied on alleged representations when entering contract
  3. 3 Whether negligence and nuisance causes of action are statute-barred under the Limitation Act and Building Act s393

Ratio Decidendi

Application to strike out was dismissed because the issues raised (scope and application of the exclusion clause under s4 Contractual Remedies Act, reliance, and limitation including effect of Building Act s393) depended on contested facts and a weighing of circumstances that could not properly be resolved on a strike out application; defendants failed to show the causes of action were plainly doomed to fail.

Court Disposition

Strike out application dismissed

Orders

  • Strike out application dismissed
  • Counsel to confer on costs; if unable to agree each side to file and serve memoranda not exceeding four pages within 15 working days of judgment