ROUTHAN v PGG WRIGHTSON REAL ESTATE LIMITED [2023] NZSC 127

ROUTHAN v PGG WRIGHTSON REAL ESTATE LIMITED [2023] NZSC 127 [22 September 2023]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 45/2023[2023] NZSC 127BETWEEN PHILIP WILLIAM ROUTHAN ANDJULIE VERONICA ROUTHAN ASTRUSTEES OF THE KANIERE FAMILYTRUSTApplicantsAND PGG WRIGHTSON REAL ESTATELIMITEDRespondentCourt: Glazebrook, O'Regan and Kós JJCounsel: D R Kalderimis, T Nelson and O T H Neas for ApplicantsL J Taylor KC and M E Parker for RespondentJudgment: 22 September 2023JUDGMENT OF THE COURTA The application for an extension of time to apply for leave tocross-appeal is granted.B Leave to appeal and cross-appeal is granted in part(PGG Wrightson Real Estate Ltd v Routhan [2023]NZCA 123).C The approved question is whether the Court of Appeal wascorrect in varying the damages awarded in the High Court.D The applications for leave to appeal and cross-appeal areotherwise dismissed.____________________________________________________________________REASONS[1] The focus of the approved question is on the Court of Appeal's application ofthe so-called SAAMCO principle limiting liability in the case of the provision ofinformation to a ceiling based on a difference in value.1 However the question permits,at a secondary level and in order to ensure quantum may be resolved in this Court,either party to pursue other arguments relating to the measure of damages awarded, asadvanced in their leave to appeal and cross-appeal submissions. The application foran extension of time to apply for leave to cross-appeal accordingly is granted, therebeing no prejudice to the applicants.[2] Leave is declined for the first ground of appeal proposed by the applicants, inwhich they seek to challenge concurrent conclusions of the High Court andCourt of Appeal that the agent's representation, while admittedly negligent, wasnonetheless not deceitful.2 The principles relating to deceit are settled and do notrequire further review.3 To accede to this ground of appeal would, under the guise ofan issue of principle, require the Court to re-examine factual questions of credibilityon which the High Court Judge was best placed to make a finding, and where herconclusions have been upheld by the Court of Appeal. We see no likelihood of asubstantial miscarriage of justice in that respect.4[3] Leave is likewise declined for the respondent to cross-appeal the concurrentconclusions of the High Court and Court of Appeal that the applicants would not havepurchased the farm had the misrepresentation not been made. This proposed groundalso turns wholly on the evaluation of the evidence made by the Courts below. We seeno likelihood of a substantial miscarriage of justice in this respect either.1 Expounded in South Australia Asset Management Corp v York Montague Ltd [1997] AC 191 (HL).2 Routhan v PGG Wrightson Real Estate Ltd [2021] NZHC 3585, (2021) 16 TCLR 274(Dunningham J); and PGG Wrightson Real Estate Ltd v Routhan [2023] NZCA 123,(2023) 24 NZCPR 97 (Gilbert, Mallon and Wylie JJ).3 See Amaltal Corp Ltd v Maruha Corp [2007] 1 NZLR 608 (CA) at [46] and [50].4 Senior Courts Act 2016, s 74(2)(b). As to what is required for a substantial miscarriage in civilcases, see Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60; (2006) 18 PRNZ369 at [5].[4] Accordingly, and to the extent stated in [1], leave to appeal and cross-appeal isgranted in part. The applications for leave to appeal and cross-appeal are otherwisedismissed.Solicitors:Luke Cunningham Clere, Wellington for ApplicantsParker Cowan Lawyers, Queenstown for Respondent