BOOTH & ANOR V SATHERLY & ORS HC AK CIV 2006-404-1124

BOOTH & ANOR V SATHERLY & ORS HC AK CIV 2006-404-1124

Summary judgment refused: the pleaded cause based on agency/appointment against the second defendant fails because the sale agreement names Challoner Realty Limited and no evidence establishes the fourth defendant was appointed or held out as vendor's agent, but the separate cause alleging misrepresentation by conduct (repainting/concealment) cannot be summarily dismissed because material factual issues (knowledge, concealment, construction predisposition, reliance) exist that require trial and discovery, so the defendant did not satisfy r136(2) that none of the claims can succeed.

Citation
openlaw-0b3aea51_9259_4c44_9f59_8b1c7baf6a5a.pdf
Parties
Plaintiff: Nicholas Robert Booth; Plaintiff: Dianne Margaret Booth; First Defendant: Alan Satherly; Second Defendant: Huyon Ga; Third Defendant: Pakuranga and Howick Realty Limited; Fourth Defendant: Patrick Tuck; First Third Party: Ian Jacob Oosterdijk; Second Third Party: Gary Charles Whittaker; Third Third Party: Daniel Simmonds
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 December 2006
Procedural Posture
Civil Application for Summary Judgment / Interlocutory Hearing on Defendant's Summary Judgment Application
Outcome
Application for summary judgment by second defendant declined
Legal Topics
Misrepresentation, Vicarious Liability, Agency Appointment and Ostensible Authority, Summary Judgment, Leaky Home/concealment
Contract Agency Property Tort Civil Procedure Misrepresentation Vicarious Liability Agency Appointment and Ostensible Authority +2 more

Case Brief

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Parties

Nicholas Robert Booth

Plaintiff

Dianne Margaret Booth

Plaintiff

Alan Satherly

First Defendant

Huyon Ga

Second Defendant

Pakuranga and Howick Realty Limited

Third Defendant

Patrick Tuck

Fourth Defendant

Ian Jacob Oosterdijk

First Third Party

Gary Charles Whittaker

Second Third Party

Daniel Simmonds

Third Third Party

Procedural Posture

Civil Application for Summary Judgment / Interlocutory Hearing on Defendant's Summary Judgment Application

Legal Issues

  1. 1 Whether the fourth defendant was agent of the second defendant when alleged representations were made
  2. 2 Whether added words to the sale agreement or statutory provisions generate an appointment or ostensible authority
  3. 3 Whether the second defendant's conduct (repainting) amounted to misrepresentation by conduct/concealment

Ratio Decidendi

Summary judgment refused: the pleaded cause based on agency/appointment against the second defendant fails because the sale agreement names Challoner Realty Limited and no evidence establishes the fourth defendant was appointed or held out as vendor's agent, but the separate cause alleging misrepresentation by conduct (repainting/concealment) cannot be summarily dismissed because material factual issues (knowledge, concealment, construction predisposition, reliance) exist that require trial and discovery, so the defendant did not satisfy r136(2) that none of the claims can succeed.

Court Disposition

Application for summary judgment by second defendant declined

Orders

  • Application for summary judgment by second defendant dismissed
  • Costs on the application reserved