Authors: Thomas Gibbons, James Mahuta-Coyle
Published: 19 June 2023
Pages: 34

Introduction

Litigation constantly tests the limits of existing principle. Of course, the core areas of liability are reasonably well-established, but claims on the boundaries are always arising and provide fertile sources of disputation. When a court is asked to adjudicate on a novel claim the starting point naturally is the accumulated wisdom and experience of earlier courts in reaching decisions which help throw light on the question in issue. Certainly the courts usually prefer to proceed cautiously and to exercise the need for incremental development of the law. Yet this approach can only take a court part of the way. Decisions extending existing principles ultimately rest on policy considerations, sometimes expressed, sometimes implicit. Policy necessarily guides the courts in deciding whether to create new areas of tortious liability or whether to refuse to build upon existing limits.

As all practitioners will know, the law does not stand still. The purpose of this book is to ensure that participants are aware of those key decisions that have recently emanated from the senior courts. In order to provide this update we have reviewed published judgments from January 2022 until present. We have sought to cover recent authority relevant to those in the property law field and, separately, focusing on the key contract of concern to practitioners at a day-to-day level, namely the REINZ/ADLS agreement for sale and purchase standard form, ubiquitously relied upon as the form of agreement for residential property transactions in New Zealand. In addition, we have covered recent authority regarding a high-profile land transaction gone wrong which saw development in the law of torts and in particular, the assessment of damages where negligence is made out by professional advisers in the context of a property or business transaction.

While there are potentially hundreds of judgments to choose from, in order to make this update manageable, we have identified six key judgments that property specialists would benefit from some awareness of. These cases are examined in the following pages.
 

Content outline

• Scope of unit title-specific warranties: Miles v Gadd
• Assessing damages in negligence: Wrightson Real Estate Limited v Routhan
• OIA condition solely for purchasing benefit: Future Sustainable Development Limited v Liu
• A conditional agreement: Melco Property Holdings (NZ) Limited v Hall
• A driveaway: Fuge v Wimax 
• A covenant over units: Landmark Property Holdings Ltd v Shen Empire Ltd