FOWLER DEVELOPMENTS LIMITED V ROBERTSON HC CHCH CIV-2009-409-000454

FOWLER DEVELOPMENTS LIMITED V ROBERTSON HC CHCH CIV-2009-409-000454

The vendor's statements and promotional material contained an implicit, incorrect representation of present fact that the developer had legal authority/regulatory consents to construct the adjacent salt marsh amenity; defendants relied on that representation and, objectively, the existence of regulatory consents was essential to their decision to contract; accordingly cancellation under s 7(4)(a) of the Contractual Remedies Act was valid and the plaintiff's claim for specific performance and enforcement of the bond fails.

Citation
openlaw-6458466e_9235_4b21_8b5e_852db1b33d99.pdf
Parties
Plaintiff: Fowler Developments Limited; First Defendant: Craig James Robertson; Second Defendant: Delta Assets Limited; Third Defendants: Peter John Carr and Tina Maria Carr; Fourth Defendant: New Zealand Home Bonds Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
1 June 2012
Procedural Posture
Civil Specific Performance (contract) / Judgment (trial)
Outcome
Contracts lawfully cancelled; plaintiff's claim for specific performance dismissed; plaintiff's claim to enforce the bond dismissed
Legal Topics
Misrepresentation, Essential Term, Cancellation, Contractual Remedies Act S7, Specific Performance, Regulatory Consents, Implied Representations
Contract Law Property Law Resource Management Law Civil Remedies Misrepresentation Essential Term Cancellation Contractual Remedies Act S7 +3 more

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Parties

Fowler Developments Limited

Plaintiff

Craig James Robertson

First Defendant

Delta Assets Limited

Second Defendant

Peter John Carr and Tina Maria Carr

Third Defendants

New Zealand Home Bonds Limited

Fourth Defendant

Procedural Posture

Civil Specific Performance (contract) / Judgment (trial)

Legal Issues

  1. 1 What the buyers saw and were told before contracting
  2. 2 Whether illustrations and conversations implied a representation that regulatory consents for the adjoining salt marsh were in place
  3. 3 Whether purchasers relied on any such representation

Ratio Decidendi

The vendor's statements and promotional material contained an implicit, incorrect representation of present fact that the developer had legal authority/regulatory consents to construct the adjacent salt marsh amenity; defendants relied on that representation and, objectively, the existence of regulatory consents was essential to their decision to contract; accordingly cancellation under s 7(4)(a) of the Contractual Remedies Act was valid and the plaintiff's claim for specific performance and enforcement of the bond fails.

Court Disposition

Contracts lawfully cancelled; plaintiff's claim for specific performance dismissed; plaintiff's claim to enforce the bond dismissed

Orders

  • Plaintiff's action dismissed and contracts cancelled
  • No enforcement of the deposits/bond; bond falls away