Disgruntled buyers cannot affirm yet disaffirm their contract at the same time, as Chamberlain family found to their cost when seeking to cancel an Auckland $1.25 million apartment purchase after earlier carrying out lengthy negotiations over weathertightness repairs.
Their purchase stands, the High Court ruled. At best, the Chamberlains get damages.
In late November 2022, Tony and Lyn Chamberlain settled their purchase of a newly-constructed Milford residential apartment, taking title in name of their family trust.
The contract included a maintenance clause requiring vendor, Mark Gunton’s Omana North Ltd, make good any defects notified in the next twelve months.
Within months, Omana North was given notice of sundry issues requiring attention: insufficient cedar cladding clearance, incomplete painting, unfinished grouting, wiring, and other sundry issues.
Weeks later, low-level black mould and elevated moisture levels signalled problems with water ingress.
Omana North moved the Chamberlains to another apartment, rent free, while remedial work was carried out.
Over the next two years there were ongoing disputes over the extent of work required.
More than one Auckland Council building consent was needed before remedial work could proceed.
By May 2025, the Chamberlains were sufficiently fed up that they gave formal Contract and Commercial Law Act notice supposedly cancelling their agreement to buy, alleging failure by Omana North to comply with the maintenance clause.
In the High Court, Associate Judge Gellert ruled there was no breach of the maintenance clause; delays arose because of the need for detailed inspections by specialist third party investigators and time taken to get Council consents for remedial work.
Even if there were a breach of the maintenance clause, the Chamberlains had lost any right to cancel, having affirmed the contract by their ongoing engagement with Omana North over several years seeking to remedy construction issues, Judge Gellert ruled.
Chamberlain v. Omana North Ltd – High Court (11.05.26)
26.157