The High Court has heard an increasing number of cases in recent years relating to claims in misrepresentation for the sale and purchase of “leaky homes”. Having found in its first judgment in Shen v Ossyanin that the defendant did not misrepresent that the property was a leaky building, the Court invited the parties to make further submissions on a claim in contractual mistake. Shen (no. 2) provides an interesting example of the High Court’s approach to assessing a claim for common mistake, and the use of its discretion to award relief, where a claim in misrepresentation was unsuccessful. ..
The recent Auckland High Court decision of Tian v Zhang & Ors  NZHC 2231 provides an interesting insight into how a “dowry” or “bride price” might be reclaimed under New Zealand law where the parties split before they get the chance to head down the aisle. ..
Tower Insurance Limited v Nicon Limited  NZCA 332 raised two fundamental issues relating to a Heads of Agreement (which may also be known as a terms sheet, memorandum of understanding (MOU), letter of intent (LOI), or similar). First, was the Heads of Agreement effective in the absence of a statement it was intended to be legally binding? Secondly, what was the meaning of the Agreement? The Court of Appeal answered “Yes” to the first question and held that the document was drafted in a way that it required Tower/Stream to treat Nicon as an exclusive contractor, not simply one of a panel of approved demolition contractors, in all but limited circumstances. The case shows that there are risks with entering into a Heads of Agreement. ..
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  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  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  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  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 ..