PENNEY & BURNS v NG [2014] NZHC 1486

PENNEY & BURNS v NG [2014] NZHC 1486

The court found the seventh defendant did make the treated timber representation but the plaintiffs did not rely on it as a causative factor in entering the contract; the representation was a background factor and thus claims against the agents for misrepresentation, negligent misstatement and breach of s9 Fair...

Source-derived case information.

Citation
[2014] NZHC 1486
Parties
Plaintiff: Stephen John Penney; Plaintiff: Macushla Eileen Burns; First Defendant: Danny Ng; Second Defendant: Studorp Ltd (previously James Hardie Building Products Ltd); Third Defendant: James Hardie New Zealand Ltd; Fourth Defendant: Harcourts Group Ltd; Fifth Defendant: Hobsonville Realty Ltd; Sixth Defendant: Eileen Taua; Seventh Defendant: Graham Lewis
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 June 2014
Procedural Posture
Civil Property/weathertightness Dispute; Misrepresentation/negligent Misstatement/fair Trading Act/contract / Judgment on Liability (trial 10 11 Feb 2014); Quantum Reserved; Interim Judgment Delivered 30 June 2014
Outcome
Claims against fifth, sixth and seventh defendants dismissed; claim against first defendant for breach of contractual warranty allowed as to liability; quantum reserved with $20,000 general damages awarded against first defendant; costs directions given.
Legal Topics
Misrepresentation, Negligent Misstatement, Vicarious Liability, Weathertightness / Building Defects, Causation, Contractual Warranty Breach, Fair Trading Act S9 and S43, Contractual Remedies Act S6, Damages for Distress
Contract Tort Consumer Protection Property Law Civil Procedure Statutory Interpretation Misrepresentation Negligent Misstatement +7 more

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Parties

Stephen John Penney

Plaintiff

Macushla Eileen Burns

Plaintiff

Danny Ng

First Defendant

Studorp Ltd (previously James Hardie Building Products Ltd)

Second Defendant

James Hardie New Zealand Ltd

Third Defendant

Harcourts Group Ltd

Fourth Defendant

Hobsonville Realty Ltd

Fifth Defendant

Eileen Taua

Sixth Defendant

Graham Lewis

Seventh Defendant

Procedural Posture

Civil Property/weathertightness Dispute; Misrepresentation/negligent Misstatement/fair Trading Act/contract / Judgment on Liability (trial 10 11 Feb 2014); Quantum Reserved; Interim Judgment Delivered 30 June 2014

Legal Issues

  1. 1 Whether agents made representations that the house was built with treated timber
  2. 2 Whether plaintiffs relied on those representations and whether reliance was causative of loss
  3. 3 Whether representations breached s 9 Fair Trading Act 1986 and whether s 43 causation is satisfied

Ratio Decidendi

The court found the seventh defendant did make the treated timber representation but the plaintiffs did not rely on it as a causative factor in entering the contract; the representation was a background factor and thus claims against the agents for misrepresentation, negligent misstatement and breach of s9 Fair Trading Act fail for lack of causation under s43. The vendor (first defendant) breached the contractual warranty cl 6.2(5) by permitting re-cladding without required consents; plaintiffs awarded liability against vendor with quantum reserved and $20,000 general damages awarded now.

Court Disposition

Claims against fifth, sixth and seventh defendants dismissed; claim against first defendant for breach of contractual warranty allowed as to liability; quantum reserved with $20,000 general damages awarded against first defendant; costs directions given.

Orders

  • Claims against Hobsonville Realty Ltd, Eileen Taua and Graham Lewis dismissed.
  • Judgment for plaintiffs against Danny Ng (First Defendant) for breach of warranty (cl 6.2(5)).