Publications and Blog

Whether vendors should be liable for innocent misrepresentation and undiscovered weathertightness defects in the sale of existing homes is a controversial question currently eliciting differing responses in the Courts. The question typically arises after a buyer settles a house purchase and then discovers error in the information provided by or on behalf of the vendor, or major weathertightness and/or other defects in the property. In a recent case, Grant v Ridgeway Empire Limited [2018] NZHC 2642, a buyer succeeded in a case against the vendor when post-sale expert investigations revealed extensive weathertightness defects and damage.  ..

Parties to commercial contracts should review their contracts to check whether they contain “no oral modification” (NOM) clauses, and if they do, ensure they are complied with, following the UK Supreme Court’s decision in Rock Advertising Ltd v MWB Business Exchange Centres Ltd [2018] UKSC 24, in which the Supreme Court held that a NOM clause was enforceable. ..

When selling their house, is a homeowner entitled to assign their ongoing insurance claim to the purchaser? Not for the full replacement value of their insurance policy and not without the insurer’s consent, according to the recent Court of Appeal decision of Xu & Diamantina Trust Limited v IAG New Zealand Limited [2018] NZCA 149 (11 May 2018). ..

In a recent High Court decision, Thomas J awarded joint owner-occupiers of a unit in a leaky complex $35,000 in general damages for stress and anxiety arising from the discovery of leaky issues with their unit and the resulting litigation. This is an increase above the previous level of general damages for owners of leaky buildings. Amy Davison, Senior Associate, and Zoe Hollander, Law Clerk, discuss.   ..

The Courts have both statutory and inherent jurisdiction to remove trustees and recent cases indicate they are now more willing to use this power. The recent decisions in McCallum v McCallum and Burnside v Burnside are illustrative in this context. Stuart, Dalzell, Partner, and Amy Davison, Senior Associate, discuss. ..

Leaky building owners can now join the class action against James Hardie under a five month “opt-in period” granted by the Court of Appeal in Cridge v Studorp Limited [2017] NZCA 376. The Court of Appeal found that issues of duty, breach of duty and Fair Trading Act breach were sufficiently common to all owners to justify a representative or class action. Therefore, the claim had been properly brought as a representative case, stopping time “permanently” for limitation purposes for both the named plaintiffs and represented class members. The later coming into force of the 15-year limitation period under the Limitation Act was not a reason to limit the opt in period. Parker & Associates acted for the successful owners. *Stuart Dalzell, Partner, discusses the decision ..

Stuart Dalzell, Partner and Jackie Frampton, Associate, discuss the recent decision of the Supreme Court of Canada in Saadati v Moorhead 2017 SCC 28, in which the Court held there is no requirement to demonstrate a “recognizable psychiatric illness” supported by expert opinion. ..

In Steel v Spence Consultants Limited & Another (identified as [2017] NZHC 398), the High Court rejected a building inspector’s argument that his liability was limited by the disclaimer clause attached to the original report, and found him personally liable for losses. ..

Parker & Associates acted for the successful plaintiff purchasers, Mr and Mrs Mason, in Mason v Magee [2017] NZHC 51. The decision is an important one for both buyers and sellers of ‘leaky homes'.
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The Supreme Court on 22 December 2016 released its decision in Lee v Whangarei District Council. At issue was whether section 37(1) of the Weathertight Homes Resolution Services Act 2006 (the WHRS Act) – which provides that an application for an assessor’s report stops the running of the period of time set forth by Limitation Acts – applies equally to claims that proceed in the ordinary courts (rather than the Weathertight Homes Tribunal (WHT)). The Supreme Court held that it did, after the High Court and Court of Appeal had struck out the plaintiff’s claim as time-barred. This ruling is extremely significant to leaky home claimants because it allows homeowners to decide whether to proceed in either the WHT or the High Court without giving rise to any new limitation issues.