In addition to the Couch case that pointedly refused to follow the Bottrill decision in the PC, the NZ Court of Appeal release in Sunset Terraces and Byron Avenue,  its first real consideration of whether Hamlin applied to what are known as “leaky homes cases” .  The Court of Appeal took what was a very wide view of the basis of Hamlin, and its finding of liability of local authorities.  and seemed to endorse the much maligned ( at least by Lord Hoffmann) concept of general reliance.   This is a major thing in New Zealand given that losses from leaky homes are said to amount to over  $NZ 11 Billion.   The cases are most notable for the rather gentle judicial expectations placed by the judges on what the plaintiff home buyers ought to have done to have guarded their own interests.   The cases can be contrasted with the other line of cases involving commercial buildings where the Courts have refused to recognise council liability.  The correctness of Hamlin has been reserved by  the Council’s QC for the Supreme Court.    The judgments can be found under the Court of Appeal tab at http://www.courtsofnz.govt.nz/from/decisions/judgments .

 

 Overseas lawyers who are not government liability devotees) might be most interested in Byron Avenue  and its long consideration of whether the negligence of one of the buyer’s lawyers might lead to a finding of contributory negligence against her ( it could!)

 

Geoff

 

 

 

 

 

 

Dear Colleagues:

Some of you might be interested in two recent decisions.

The first, from the NZSC, deals with punitive damages. In Susan Couch v The Attorney-General [2010] NZSC 27 "The members of this Court (Elias CJ dissenting) have agreed, not following on this point an earlier decision of the Privy Council, that exemplary damages should not be available in cases of negligence unless the defendant consciously appreciated the risk the conduct in question posed to the safety of the plaintiff and proceeded deliberately and outrageously to run that risk causing harm to the plaintiff." (http://www.courtsofnz.govt.nz/from/decisions/judgments-supreme/judgments-supreme-2010).

The second, from the English Court of Appeal, deals with undue influence and holds (I am told) that a failure to disclose an extra-marital affair creates a presumption of undue influence. See HEWETT v. FIRST PLUS FINANCIAL GROUP PLC [2010] EWCA Civ 312.

Happy Reading,

-- 

Jason Neyers

Associate Professor of Law

Faculty of Law

University of Western Ontario

N6A 3K7

(519) 661-2111 x. 88435