Developer John Love has lost litigation over a $167,000 claim for work combining two apartments into one $2.9 million place for an expatriate Kiwi returning from Asia.
The Court of Appeal rejected his Civic Lane claim against expat John Andrew Dibble, who bought a unit in Love & Co’s The CAB on Aotea Square in Auckland’s heart.
Love wanted the extra money for modifying a standard layout to suit Dibble’s needs after he asked for two level-16 places to be combined into one larger place in the heritage-listed former Civic Administration Building.
Dibble and his wife had been living in Hong Kong for many years, but planned to return here to retire, the decision said.
When they were in Auckland in 2020, they met Bayleys agent Suzie Paine, selling The CAB.
But none of the standard units suited because they were too small and the sub-penthouse and penthouse apartments were too expensive. Paine suggested combining two standard apartments to create one bigger apartment.
That appealed to the Dibbles.
So an 80sq m and 71sq m place were combined. It was not until nearly 10 months later that Dibble found Love intended to charge the large amount for extra costs associated with the changes.
In October last year, Civic Lane issued a settlement statement to Dibble, increasing the purchase price by $167,795.14 due to variations.
Dibble refused to settle, saying his liability was limited to the increased cost of certain bathroom fixtures and kitchen appliances he picked for $12,191.15.
Dibble accepted responsibility for two other invoices: appliance changes for $7110.76, and sanitary changes for $5080.39.
However, the parties couldn’t agree on the larger sums Love’s company wanted.
So in June, Dibble went to the High Court at Auckland over the case and the judge there accepted his argument that Civic Lane didn’t have the right to “adjust” the purchase price for all the costs of converting a standard floor plan and layout into a single place.
On the judge’s interpretation, Civic Lane had assumed the commercial risk and associated cost of constructing a single apartment instead of two smaller apartments.
Dibble had not agreed to pay that extra.
Unhappy with that, Love took matters to the Appeal Court seeking to overturn the High Court case.
He argued the actual costs would not be known until works such as the kitchen fit-out were complete towards the end of the building work.
He said this could be months or even years after the sale agreement was struck. That explained Civic Lane’s delay in providing invoices for the increased costs, according to Love’s case.
But the court didn’t back him.
“Agreement having been reached on the design of the final layout without any price adjustment being sought or agreed, Civic Lane was obliged to construct the apartment conforming to that layout and cannot unilaterally impose a price increase for doing so,” the decision said.
Asked for his opinion about the case outcome, Love told the Herald yesterday: “Disappointed with the result. Don’t believe it’s correct, but took it to Court of Appeal in an attempt to get justice.”
Asked for his opinion, Dibble said today: “It has been a very frustrating experience for sure.”
Anne Gibson has been the Herald’s property editor for 23 years, has won many awards, written books and covered property extensively here and overseas.