IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA358/2020
 [2020] NZCA 471

	
BETWEEN	
LENDLEASE CAPITAL SERVICES PTY LIMITED
Appellant	
	
AND	
ARENA LIVING HOLDINGS LIMITED
Respondent	

Court:	
Kós P and Clifford J	

Counsel:	
J F Anderson QC, M R Crotty and M Eastwick-Field for Appellant
S J P Ladd and B J Ward for Respondent	

Judgment:
(On the papers)	
5 October 2020 at 9 am	

JUDGMENT OF THE COURT

A	Leave to appeal is granted.

B	The approved questions on appeal are those stated at [5].
____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)
[1]	The applicant, Lendlease Capital Services Pty Ltd, seeks leave to appeal a decision of the High Court declining its interlocutory application for orders striking out the second cause of action, an allegation of breach of a maintenance warranty, in the statement of claim of the respondent, Arena Living Holdings Ltd.  Lendlease sought leave to appeal in the High Court which was declined.
[2]	The underlying claim concerns a sale of shares in a company that ran five retirement villages in New Zealand, by Lendlease, to Arena.  Three of the five retirement villages suffer from watertightness issues.  Arena claims against Lendlease for breach of warranties in the sale and purchase agreement.  
[3]	Lendlease’s application for strike out relates to the second cause of action, an allegation of breach of cl 14.1 of the agreement warranting that the buildings were appropriately maintained.  Clause 10.4 of the agreement relevantly provides that Arena may only claim for a breach of warranty if it gave Lendlease written notice of the claim, setting out reasonable particulars, before a specified date.  Lendlease’s strike-out application alleges Arena did not give notice of breach of cl 14.1 in time.
[4]	This Court may grant leave under s 56(5) of the Senior Courts Act 2016.  Leave should not be granted unless:
(a)	the proposed appeal raises some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the appeal; and
(b)	the proposed appeal has some reasonable prospect of success.
[5]	We are satisfied the following questions posed by Lendlease meet those criteria, namely whether the High Court erred in:
(a)	distinguishing between contractual notices requiring the person notified to do or refrain from doing something and contractual notices that convey information, and finding that there is a heightened need for clarity and certainty in relation to the former but not the latter;
(b)	finding looseness in the references to breaches of other warranties in Arena’s notices was not fatal to their compliance with cl 10.4;
(c)	finding cl 10.4 permitted Arena to leave its way open to make claims under other warranties without expressly identifying those other warranties in the notices;
(d)	departing from English authority on the interpretation of notice provisions such as cl 10.4;
(e)	finding a vendor notified of a claim for watertightness defects was thereby fairly notified of a claim under a maintenance warranty;
(f)	finding the cl 10.4 requirement to provide reasonable particulars of the grounds on which Arena’s claims for breach of the maintenance warranty is based was satisfied by reference to the watertightness warranty and/or watertightness defects and did not require Arena to refer to the maintenance warranty; and
(g)	finding, in the context of a leaky building claim, it would be unduly oppressive to require the purchaser to give greater specificity at the notification stage by identifying the warranties under which it intended to claim.
Result
[6]	Leave to appeal is granted.
[7]	The approved questions on appeal are those stated at [5].

Solicitors: 
Russell McVeagh, Auckland for Appellant
Bell Gully, Auckland for Respondent