19 December 2014

Land: Western Park Village v. Baho

Failing to disclose during negotiations for the sale of a Parnell residential unit that a threat of potential legal action had been made against the body corporate cost the vendor damages of $50,000.
In May 2007, Western Park Village Ltd agreed to purchase a residential unit at 30 Augustus Terrace, Parnell in Auckland from Mr Baho at a price of $1.225 million.  It later used a failure by Mr Baho to disclose legal problems faced by the Augustus Terrace body corporate as grounds to try and escape the contract.
To finance the purchase, part of the price was left in secured by a mortgage back to Mr Baho. Remaining payments were due in two lump sums.  The Court of Appeal was told Western Park defaulted on payment of the second instalment.  Discussions over rescheduling this debt failed.  Western Park then sought to cancel its purchase, alleging breaches of contract by Mr Baho.  By the time the case reached the Court of Appeal, the central issue was liability for rock and debris falling down a cliff from the Augustus Terrace property on to buildings below.
Evidence was given that rockfall debris had been an ongoing problem for at least a decade.  A geo-textile net had been installed to catch rocks falling, but this was damaged in a substantial slip. In 2006, the body corporate controlling the Augustus Terrace development received a letter from the neighbour’s solicitors requiring specified remedial work on the cliff face to commence without delay.  This was coupled with a warning that legal action would be taken otherwise.
Western Park said it was not told of this threat when buying the following year.  Within months of this purchase, the Augustus Terrace body corporate was sued in nuisance for damage caused by the ongoing rockfall.  The court was told the dispute was settled out of court with Western Park paying some $33,600 as its share of the body corporate’s remediation costs.
The Court of Appeal said the failure by Mr Baho to disclose the fact of the ongoing dispute was a breach of a specific clause in the agreement for sale of purchase where he stated he had no knowledge of the possibility of any proceedings being issued against the body corporate.
A prospective purchaser made aware of this threatened legal action would make inquiries about the likely cost of necessary remediation work and deduct this figure from the price offered, said the court.  Damages of $50,000 were awarded to Western Park.  This sum was to be set off against the $204,070 owed to Mr Baho for the still unpaid second instalment on the mortgage back.
Western Park Village v. Baho – Court of Appeal (19.12.14)
15.004