Hooker v Stewart - [1989] 3 NZLR 543

Damages — Assessment — Mitigation — Contributory negligence — Vendor signed contract to sell property leaving money in on second mortgage behind unlimited first mortgage after being told by real estate agent that purchaser was a wealthy and reputable businessman and after being dissuaded by agent from first seeking legal advice — Vendor subsequently obtained legal advice that contract was probably binding and, when purchaser threatened to sue, settled despite concern as to terms of contract — Purchaser defaulted under first mortgage and on mortgagee's sale there was loss to vendor — Vendor sued agent — High Court found agent to be in breach of his duty of care to vendor — On appeal, agent claimed that vendor failed to mitigate his loss and was contributorily negligent — Whether vendor's solicitor should have inquired about payment of deposit — Whether deposit had been paid late entitling the vendor to mitigate his loss by cancelling the contract — Whether there was an implied term in contract that amount secured under both mortgages would not exceed purchase price — Whether vendor had been contributorily negligent in not refusing to settle.