Hearing: 4-8, 11-15 and 18-19 May 2015

Counsel:

S C Langton and A M Evans for Plaintiff
G J Harley, S A Armstrong and C M Laband for Defendant

Judgment:

2 October 2015

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 2 October 2015 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Langton Hudson Butcher, Auckland
Russell McVeagh, Auckland

BAMBURY v JENSEN [2015] NZHC 2384 [2 October 2015]

TABLE OF CONTENTS

Introduction [1]

General considerations on the relationship between the plaintiff
and the defendant [8]

Two conceptual impasses to settlement [25]

The parties to the agency [33] Before Unovis Limited [34] Burdens and benefits of the relationship [35] After Unovis any change: The conditions of novation [41]

The terms of the arrangement between Mr Bambury and Mr Jensen [66] Barkley v Barkley Brown – the duty to account [81] The limitation issues [97] Laches and acquiescence [135]
Extraordinary nature of the remaining disputes [142] Extraordinary expenses of the gallerist [144] Insurance/damaged works [147] Extraordinary sales/purchases/commissions [148]

Defendant’s duty to account – plaintiff ’s onus of proof [150]

Accounting and “Settled Account” [154]

Resolution by a Court in the absence of prior agreement on a term, or of an established custom, or of a proven settlement, formal
or informal [159]

Summary of legal method [161]
Conclusion on fiduciary obligations and the Limitation Act [165]

Equitable compensation [166]
The defendant’s argument [177] The plaintiff ’s acknowledgement of debt to the defendant [185] The current pleadings [187]

The plaintiff ’s first cause of action – breach of agency/fiduciary
duty – failure to deliver up to the plaintiff consigned works [188]
Great Wall (II) 2006 [189]

Ghost (XXXIII) 2005 [207] Blind 2006 [213] Must Form a Unity 1994 [220] And It Conditions Us 1998 [230] The Eternal Persistent 2000 aka
The Eternal Persistent (Aluminium) [234]

Second cause of action – breach of agency/fiduciary duty –
failure to deliver up Seven Witnesses/Seven Truths [245]

Third cause of action – breach of agency/fiduciary duty –
failure to account for sale proceeds from sold works  [263]
The first part – failure to account for any of the proceeds               [264]
By Its Direct Action (1995) and In His Pursuit of the Absolute
(1999)  [269] Letters to Paul (VII)  [279] To Hold On To That Consciousness (1998)  [284] Sienna (XLIV)  [290] Ghost (LII) (2006)  [293] Blind (III) (2006)  [302] What Remains When the Object is Named (2000)  [310]

Third cause of action – second part – failure to account for
for all the proceeds [318]
Necessary Corrections XVIII, The Eternal Present, and
Untitled work on Paper [319] Mudra (II) [326] Of the properties of the materials [327] Insert Cross 089322 [328]

Roller Mills commission: The defendant’s set-off argument versus
Plaintiff ’s claim for full proceeds of sale
The proceeds of the sales of Ngamotu…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bambury v Jensen

Details

AGLC: Bambury v Jensen [2015] NZHC 2384
Case: [2015] NZHC 2384
Decision Date: 2 October 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Bambury v Jensen, Bambury sued Jensen for breach of fiduciary duty, breach of contract and other claims. The case involved a 15-year relationship between the plaintiff, a successful artist, and the defendant, a gallery owner. The plaintiff alleged that the defendant failed to account for the proceeds of the sale of his artworks, breached fiduciary duties, and failed to deliver up consigned works. The defendant denied the allegations and counterclaimed for unpaid commissions on certain sales. The court examined the nature of the artist-gallerist relationship, the fiduciary obligations owed by the gallery to the artist, and the limitation issues arising from the 2013 proceedings. The court found that the relationship was primarily contractual but also had fiduciary elements. While the gallery owed fiduciary duties to the artist, not all fiduciary obligations warranted equitable relief. The court held that some of the plaintiff's claims were statute-barred under the Limitation Act 1950. The court also found that the gallery was not a trustee of the sale proceeds but had an obligation to pay the artist promptly. The court dismissed most of the plaintiff's claims but awarded damages in certain cases for breach of contract and failure to account. The court also found that the gallery was entitled to recover unpaid commissions on certain sales. The court reserved the question of costs.

Orders