An Auckland widower is taking court action in an attempt to get his $50,000 deposit back after agreeing to buy a "garden apartment" in a project where he says the garden will instead be a gravel water or rain pit.
But the developer and two real estate agents are defending the claim and want him to pay the money he is contracted to, citing potential financial losses from his breach of contract.
Retiree Neil Gray of Franklin's Waiau Pa put down a deposit on a ground-floor Element building unit at 20 Pukerangi Cres, a 35-unit residential block now nearing completion on the Arthur St corner.
He expected to get a garden but claims he subsequently found the area outside would be a bioretention device and not a garden in the traditional sense of the word.
Element is on an elevated site, developed by Urban Resort. Gray signed a contract to pay $989,000 for the unit once the title is issued.
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Rosie Meikle of developer Urban Resort said: "I cannot understand how Gray could possibly have that view," she said about his objections to the garden being created.
"The gardens are currently under construction and will be completed with native plants and irrigated with conserved water collected and distributed from within Element's grounds. This has always been the case," Meikle said.
On January 17, the Manukau District Court is due to hear the case Neil Craig Gray v Pukerangi Limited Partnership, Natasha Robinson of Bayleys Real Estate and Benjamin Jameson of Bayleys Real Estate.
Gray is suing for damages under the Fair Trading Act, claiming he was misled about the unit he was buying.
He wants the court to declare the apartment contract unenforceable due to alleged unconscionable dealing, misrepresentation and unfair contract terms.
Pukerangi Limited Partnership is of 30 Douglas St. Urban Resort's managing director is Jim Castiglione who Gray met.
The developer's statement of defence says notices have been sent to Gray who owes it further money yet he has either neglected or refused to comply with payment demands. In October this year, PLP sought to cancel the contract for the apartment sale which its statement says "is likely to have caused it financial damage". Gray is therefore liable for the outstanding amounts, it said.
Via their lawyers at Kennedys, the two Bayleys agents' statement of defence says Gray signed a contract to buy Element's unit 106.
Gray's affidavit says his wife died shortly before he signed the contract, he was on anti-depressant medication and feels the contract process "was rushed through far too quickly".
He specifically checked that the outdoor area in front of his new place would be a garden, and court documents show that exchange.
Gray to Bayleys agent Natasha Robinson: "Re my apartment, I presume the garden will be landscaped?"
Robinson to Gray: "It's not a huge garden but yes they said they will put in planting. If you don't like it rip it out!"
Gray's affidavit says: "The point here is that the apartment I bought was specifically marketed as a 'garden apartment' which was the only option suitable for my animals, in particular, my dog Jacob. I was expecting to have a perimeter hedge for privacy and lay the rest of the garden with Astroturf."
Gray said he would not pay the full amount and wanted his deposit back.
"I bought a 'garden apartment' in October last year, just three months after my wife died," he said, claiming he was unfairly pressured to agree to conditions that were not in his interests "and told that the garden would be planted and if I didn't like it I could "rip it out"," Gray told the Herald.
He claims that he then discovered that the garden would be a bioretention device forming part of the stormwater management system for the multi-level building.
"My garden is subject to covenants to be registered on individual titles; the covenants and specific design of the stormwater system being a requirement of the resource consent conditions for the development," Gray complained.
"None of this information has been disclosed to owners and prospective purchasers," he claimed.
But he is now facing a counterclaim for the difference between what he agreed to pay and what the place can be sold for in future.
Gray disputes that, saying the unit is not finished so how can any loss be proven.
But the partnership takes a different view and has made a counterclaim against him personally. Via its lawyers at MinterEllisonRuddWatts, it said Gray had sought an extension of time to pay the balance of the deposit of $48,930.
Gray was "in breach" of the agreed terms. It wants the court to make a declaration that Gray is liable to pay the amounts outstanding as well as interest on those amounts at the default rate of 14 per cent annually from the day of the judgment.
It further wants "a declaration that [he] is personally liable to it for any shortfall arising from a subsequent resale of the apartment, being the difference between the purchase price payable ... and any future purchase price realised."
Bayley's group licensee and Bayley Corporation agency compliance manager Tony Bayley said he was aware of Gray's issues. He confirmed the agency had a complaint and said a full review of the transaction was undertaken.
"Bayley said that as the complaint was now the subject of a civil proceeding, the agency could not comment further," a spokesman said.
Jim Castiglione of Urban Resort said: "It's a complete mystery to me that there are complaints and the claim by Neil Gray that he's not getting a garden and that it's made of gravel. That's completely false. It will be planted with native plants and made of layers of material. Google lookup rain gardens and bioretention devices. It's a garden with plants."