The High Court refused a preliminary application to dismiss Kevin Agar and Nina Saul’s negligence claims against Basil Conroy and Company Limited as statute-barred, leaving the issue for the trial judge to consider on evidence.
The buyers say they hired the defendant, a firm of chartered quantity surveyors and building costs accountants, to inspect a house and prepare a structural survey and valuation report before they agreed to buy it. The report, dated 8 December 1999, did not disclose serious cracks and defects in the walls, they allege. They said they discovered the problems about a year after taking occupation, around April 2000.
The plaintiffs issued proceedings on 24 March 2006, claiming negligence, negligent misstatement, misrepresentation and breach of contract. They accepted that the contract claim was out of time. They argued that their tort claims were within the six-year limitation period because they suffered loss when they completed the purchase and occupied the house in April 2000.
The defendant argued that the relevant date was when the plaintiffs became bound by the sale contract, rather than when they completed the purchase. It relied on a solicitor’s affidavit reporting inquiries into the vendors’ solicitor’s file and exhibiting an undated contract and related correspondence. The defendant said those materials showed that the contract was executed more than six years before the proceedings began. The plaintiffs objected that the affidavit was hearsay and said the contract date was neither agreed nor set out in their pleadings.
Justice Michael Peart said a preliminary issue of law had to be decided on agreed facts, or on the facts pleaded by the opposing party. Because the critical contract date was not agreed or established in the pleadings, he said it would not be appropriate to dismiss the tort claims on the basis of the hearsay affidavit.
The court refused the motion at this stage. The tort claims were not found to be within time or out of time. They can proceed to a hearing, where the trial judge may hear relevant oral evidence first and decide the limitation issue. Peart reserved the costs of the motion to the full hearing.