WHISPER COVE LTD V WRIGHT AND ORS HC AK CIV-2007-404-7931

WHISPER COVE LTD V WRIGHT AND ORS HC AK CIV-2007-404-7931

Summary judgment was dismissed because it was arguable that the developer represented, through the contracts, the resource consent and the Society Rules, that a single society would own and maintain communal facilities across the whole development and that those facilities had not been transferred as required by condition 4(d) of the 1999 Exemption Notice, such that the contracts may be invalid under s 37(4) of the Securities Act 1978 and therefore the defendants have an arguable defence requiring a full trial.

Citation
openlaw-85536e20_3e4e_46f8_ac36_bf7398b7de37.pdf
Parties
Plaintiff: Whisper Cove Limited; First Defendant: Bernard Wright; Second Defendant: Jeffrey Mann; Third Defendant: Michael Brian Ridgway; Fourth Defendant: Alfred Lai; Fifth Defendant: Peter James Stewart Lockie; Sixth Defendant: Empress Leisure (NZ) Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
26 May 2008
Procedural Posture
High Court Civil (contract/specific Performance) / Application for Summary Judgment
Outcome
Application for summary judgment dismissed
Legal Topics
Summary Judgment, Specific Performance, Securities Act Exemption (residential Property Development), Membership as Participatory Security, Fair Trading Act Misleading or Deceptive Conduct, Incorporated Society Constitutions
Contract Law Securities Law Consumer Protection Law Property Law Summary Judgment Specific Performance Securities Act Exemption (residential Property Development) Membership as Participatory Security +2 more

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Parties

Whisper Cove Limited

Plaintiff

Bernard Wright

First Defendant

Jeffrey Mann

Second Defendant

Michael Brian Ridgway

Third Defendant

Alfred Lai

Fourth Defendant

Peter James Stewart Lockie

Fifth Defendant

Empress Leisure (NZ) Limited

Sixth Defendant

Procedural Posture

High Court Civil (contract/specific Performance) / Application for Summary Judgment

Legal Issues

  1. 1 Whether contracts are invalid by virtue of s 37(4) Securities Act 1978 due to non‑compliance with disclosure/exemption conditions (1999 Notice clause 4(d))
  2. 2 Whether Whisper Cove is in breach of contractual obligations such as representations about communal facilities and society membership
  3. 3 Whether defendants have an arguable claim under the Fair Trading Act 1986 (misleading or deceptive conduct)

Ratio Decidendi

Summary judgment was dismissed because it was arguable that the developer represented, through the contracts, the resource consent and the Society Rules, that a single society would own and maintain communal facilities across the whole development and that those facilities had not been transferred as required by condition 4(d) of the 1999 Exemption Notice, such that the contracts may be invalid under s 37(4) of the Securities Act 1978 and therefore the defendants have an arguable defence requiring a full trial.

Court Disposition

Application for summary judgment dismissed

Orders

  • Application for summary judgment dismissed
  • Costs reserved