We brought a house with a long settlement date, and on final inspection of the house before settlement we noticed the owner had removed chattels being the curtains, curtain tracks, garden shed. All of these were handwritten into the Sales and Purchase Agreement. We disputed the settlement amount, and on the day of settlement owners denied chattels ever existed, we could show a picture from the advertising material of curtains in the whindow, but we couldn't come to agreement on settlement day of the garden shed, we were advised because of the Sales and Purchase Agreement, we had to settle, and the process is to then go to the disputes tribunal, which we are in the process of, we have had two hearings, and have another and hopefully final hearing in October. The Adjudicator has told us that unless we can prove that we physically saw the Garden Shed on the day we viewed property, then the agreement hasn't been broken, which is me doesn't make sense to me, as people buy a house in Invercargill and live in Auckland, and don't physically view the chattels listed on the doc. The hearings have turned into a circus, and we have been told there is alot of evidence against your claim of a garden shed, but surely at the end of day the Sales and Purchase Agreement should be all we need, I'm at a loss on what to do, as besides saying we saw the shed and providing the advertising material listing garden shed, and providing Sales and Purchase Agreement we don't have anything else to support our claim and this to the adjudicator isn't enough....please I would appreciate some advise of what to do or say for our final hearing, as currently it looks like the adjudicator is going to rule against our claim. Doesn't the Sales and Purchase document stand for more protection with vendors removing chattels???
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For the future get a decent lawyer. IF it was written down in the chattels you either get them or you get a credit for them. Your lawyer is at fault for not representing you correctly.
In my opinion you will spend more in time, money and negative energy trying to get it sorted on this one, just make sure you don't get caught with a bad lawyer again.
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Sounds like your lawyer tried to do as little as possible for you. In my experience, our lawyer witheld a nominal amount in his trust account, the property settled as per the S&P & he negotiated a mutually satisfactory outcome in the follwoing week.
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Yes, withholding funds at settlement is a pretty standard thing to do if there are outstanding issues. I had it done to me once. I seem to remember that it may not be the legally correct thing to do (it was a while ago so I may be wrong), but its more effective than using a disputes tribunal to recover money. If your lawyer has the funds, then the vendor is the one having to go through the hassle of the tribunal. Long term the outcome may be the same!!!!
John
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I have held funds back on several occasions when things have not been as they should, has always worked out well in the end. After all you are entitled to what is listed and the house should be supplied with keys for each door, have several times not have this happen, So the seller pays. If there are no keys they should let you know ahead.
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Regardless of the fact that the previous posters have withheld funds on settlement before, you are not entitled to do so unless the other side agree. If they didn't agree, then your lawyer did nothing wrong.
It is ridiculous to say there wasn't a garden shed if they specifically listed it in the advertising and on the agreement for sale and purchase. If there wasn't one, why would they specifically add it to the agreement? Unfortunately the tribunal adjudicators vary greatly in terms of quality.
Best of luck!
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I would provide the Referee with a copy of the S&P agreement. This is a legal contract.
You have protection under the contracts act:
"The seller has misled you
The Contractual Remedies Act gives you a right to claim compensation if you agreed to the contract based on what the other party told you, and that information turns out to be incorrect. The amount of compensation should be sufficient to put you in the position you would have been if the misrepresentation hadn't been made."
Therefore it would be reasonable to be compensated for the cost of a garden shed.
If you have pointed out the legalitites, and the Referee still dismisses your claim, you can appeal:
"What if I don't agree with the decision?
You have 28 days to appeal from the date of the referee's decision. The appeal process is free. However, you may appeal only on the grounds the procedure was unfair and produced a prejudiced result.
A specific example of procedural unfairness is if the Referee fails to have regard to any law that was brought to their attention at the hearing.
However, if the Referee had regard to the law but the merits of the case meant that in the Referee's mind the law could be departed from, then you can't appeal."
http://www.consumer.org.nz/reports/d...ls/the-outcome
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They sure can depart from the law, just
like Tenancy Unobunal Adjudicators can.
85 Manner in which jurisdiction is to be exercised
(2) The Tribunal shall determine each dispute according to the
general principles of the law relating to the matter and the
substantial merits and justice of the case, but shall not be
bound to give effect to strict legal rights or obligations or to
legal forms or technicalities.
And, according to many, it often is. Mainly
to the disadvantage of LLs, of course. Been
there, experienced that. (no tee-shirt, though)
They can even ignore 'case law' (precedents
from other Unobunal decisions) if it suits them
to do so.
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Olive:
Point One - Don't waste any money on lawyers over this. It's not worth it.
Point Two - If the adjudicator said that you personally had to have seen the chattels when the agreement was signed, then the adjudicator is completely wrong.
Point Three - If the vendor is saying that the chattels weren't there, ask the adjudicator to get that evidence in writing and under oath. This will bring in the severe criminal sanctions for a false statement and may encourage the vendor to tell the truth.
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At the DT, and the TT as well.
Positive identification of participants is not required.
That's just plain scary.
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