GEORGE v DILKS [2015] NZHC 3060

GEORGE v DILKS [2015] NZHC 3060

The broker made deliberate reciprocal false representations to both the lender and the plaintiffs regarding the purpose of the loan; those deliberate misrepresentations preclude a negligence finding but support liability for breach of fiduciary duty because the broker acted as agent/fiduciary and breached duties of...

Source-derived case information.

Citation
[2015] NZHC 3060
Parties
First Plaintiff: ARIANA CAILEEN GEORGE; Second Plaintiff: RODNEY LEE TE WAKA TOTO HOLLAND; Third Defendant: PAUL DILKS
Court
High Court
Jurisdiction
New Zealand
Judgment Date
4 December 2015
Procedural Posture
Civil Tort/equity Claim Arising From Mortgage Refinancing and Franchise Purchase (misrepresentation, Deceit, Negligence, Breach of Fiduciary Duty) / Judgment
Outcome
Judgment for plaintiffs on the breach of fiduciary duty cause of action; other causes (misrepresentation and negligence) not fully established or rejected as pleaded; damages awarded on fiduciary breach.
Legal Topics
Misrepresentation, Deceit, Negligence, Breach of Fiduciary Duty, Mortgage Refinancing, Damages
Tort Equity Property Contract Finance Misrepresentation Deceit Negligence +3 more

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Parties

ARIANA CAILEEN GEORGE

First Plaintiff

RODNEY LEE TE WAKA TOTO HOLLAND

Second Plaintiff

PAUL DILKS

Third Defendant

Procedural Posture

Civil Tort/equity Claim Arising From Mortgage Refinancing and Franchise Purchase (misrepresentation, Deceit, Negligence, Breach of Fiduciary Duty) / Judgment

Legal Issues

  1. 1 Whether the broker (Dilks) made intentional reciprocal misrepresentations to the lender (Bluestone) and to the plaintiffs about the loan purpose
  2. 2 Whether the plaintiffs can succeed in causes of action for misrepresentation, deceit, negligence and breach of fiduciary duty
  3. 3 Whether a fiduciary relationship existed between broker and clients and the scope of duties owed

Ratio Decidendi

The broker made deliberate reciprocal false representations to both the lender and the plaintiffs regarding the purpose of the loan; those deliberate misrepresentations preclude a negligence finding but support liability for breach of fiduciary duty because the broker acted as agent/fiduciary and breached duties of openness and avoidance of conflicts, causing the plaintiffs' losses; damages for deposit, loss of equity and loan shortfall are recoverable; loss of income was not proven.

Court Disposition

Judgment for plaintiffs on the breach of fiduciary duty cause of action; other causes (misrepresentation and negligence) not fully established or rejected as pleaded; damages awarded on fiduciary breach.

Orders

  • Damages awarded to plaintiffs for loss of deposit: NZD 50000
  • Damages awarded to plaintiffs for loss of equity in home: NZD 116371