WATER VIEW PROPERTY LIMITED v GARDNER [2016] NZHC 2247

WATER VIEW PROPERTY LIMITED v GARDNER [2016] NZHC 2247

The defendants have an arguable defence that the purchaser misrepresented his intention at the time of contracting (to pursue a materially different, more intensive subdivision) and that the truth of that representation was essential under s7(4)(a) CRA; because this raises serious issues of honesty and fact...

Source-derived case information.

Citation
(2016) 18 NZCPR 440
Parties
First Plaintiff: Water View Property Limited; Second Plaintiff: Martin William Askes; Defendant: David Burton Gardner; Defendant: Lorraine Ann Gardner
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 September 2016
Procedural Posture
Contract (specific Performance) / Summary Judgment Application (dismissed)
Outcome
Summary judgment dismissed
Legal Topics
Specific Performance, Misrepresentation (false Intention), Cancellation Under Contractual Remedies Act 1979 S7, Variation of Subdivision Consent (rma S127), Summary Judgment, Possession, Nomination of Purchaser
Contract Law Property Law Resource Management Law Consumer Protection (fair Trading) Civil Procedure Specific Performance Misrepresentation (false Intention) Cancellation Under Contractual Remedies Act 1979 S7 +4 more

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Parties

Water View Property Limited

First Plaintiff

Martin William Askes

Second Plaintiff

David Burton Gardner

Defendant

Lorraine Ann Gardner

Defendant

Procedural Posture

Contract (specific Performance) / Summary Judgment Application (dismissed)

Legal Issues

  1. 1 Whether purchaser misrepresented his intention to complete only the existing subdivision and not undertake a more extensive subdivision
  2. 2 Whether the alleged misrepresentation was essential under s7(4)(a) Contractual Remedies Act 1979 to justify cancellation
  3. 3 Whether proposed changes were a variation under s127 RMA or a new subdivision requiring fresh consent

Ratio Decidendi

The defendants have an arguable defence that the purchaser misrepresented his intention at the time of contracting (to pursue a materially different, more intensive subdivision) and that the truth of that representation was essential under s7(4)(a) CRA; because this raises serious issues of honesty and fact requiring trial, summary judgment for specific performance is dismissed.

Court Disposition

Summary judgment dismissed

Orders

  • Summary judgment application dismissed
  • Costs on the summary judgment application reserved