19 February 2015

Negligence: Tauranga Law v. Appleton

There is no liability for negligent advice where the advice is ignored; negligence did not cause the loss.  One investor was not entitled to recover from a Tauranga law firm his $90,400 deposit lost when Blue Chip went under because he was determined to push on with the investment regardless of the advice he was given.
The Supreme Court was told John Appleton, together with his family trust, invested in a Blue Chip project after attending one of the company’s seminars.  In 2004, he signed up for an apartment to be built in Turner Street, Auckland, at a price of $356,896 with a deposit of $101,910 payable up front.  The project collapsed.
Legal paperwork signed by Mr Appleton went to Tauranga Law who were to act as his solicitors.  Mr Appleton approached Bank of New Zealand for a loan to pay the deposit.  Wary of inflated apartment prices then apparent in Auckland, the Bank was unwilling to lend the full $101,000 requested.  The Blue Chip group then agreed to take a lesser amount of $90,468 as the deposit.
Tauranga Law, who had been acting for a number of Blue Chip investors, sent out a standard form three page letter to Mr Appleton setting out details of his transaction and some of the risks inherent in the proposed project.  The contents of this letter were subject to close scrutiny in the courts.  The letter stated Tauranga Law was not commenting on the transaction’s commercial merits but did indicate that the project might not be completed satisfactorily and that he might lose his deposit.   Mr Appleton was critical: he argued the letter did not emphasise that on paying a deposit he would become an unsecured creditor of the Blue Chip group and that the shell company he was buying the apartment from had no right to the land on which the apartments were to be built, had no funds to complete the construction and had no right to force Blue Chip to either undertake the project or to sell the building to it.  He said he would have cancelled the contract if this had been made specific.
The Supreme Court said even if Tauranga Law’s advice was negligent, Mr Appleton would have gone ahead regardless.  There was evidence that Mr Appleton did not take much notice of the three page letter when it arrived.  In his words: “He felt confident with the deal he had.”  Mr Appleton’s and his family trust’s loss of the $94,400 deposit was not caused by any Tauranga Law negligence.
Tauranga Law v. Appleton – Supreme Court (19.02.15)

15.009