Blackwater Properties Limited v Crawford Group Limited

[2023] NZHC 1390

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-2

[2023] NZHC 1390

BETWEEN

BLACKWATER PROPERTIES LIMITED

Plaintiff

AND

CRAWFORD GROUP LIMITED

First Defendant

HARRY SHAND CRAWFORD

Second Defendant

CIV-2023-409-3

BETWEEN

ANDREW SIMON SMITH and YVONNE LORRAINE SMITH

Plaintiffs

AND

CRAWFORD GROUP LIMITED

Defendant

Hearing:

(Determined on the papers)

Counsel:

H M Cassin for Plaintiffs

S D Campbell for Defendants

Judgment:

2 June 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(as to liability by consent and directions as to assessment of damages)

BLACKWATER PROPERTIES LIMITED v CRAWFORD GROUP LIMITED [2023] NZHC 1390 [2 June 2023]

[1]        In these proceedings the plaintiffs seek judgment following the cancellation of their contracts for the sale of residential properties following the defendants failure to settle.

[2]        Originally, the plaintiffs had sought specific performance but on the morning of what was to be a formal proof hearing, the solicitors representing the plaintiffs gave formal notice to the solicitors representing the defendants that the agreements for sale and purchase were cancelled.   That notice advised the defendants that pursuant to   cl 11.4 of the agreements for sale and purchase, the plaintiffs were retaining the deposits and suing for damages.

[3]        As noted, the plaintiffs originally sought specific performance and in their pleading they sought in the alternative an award of damages “in such sum as the Court considers just”, however, the damages claimed were not quantified.

[4]        At the formal proof hearing, counsel for the plaintiffs sought damages as quantified in schedules and supported by affidavit evidence, which had not been served on the defendants.

[5]        In a Minute issued by Justice Eaton following the formal proof hearing, his Honour considered it appropriate for the defendants to have notice of the damages sought. His Honour said that he intended entering judgment in favour of the plaintiffs following the failure of the defendants to settle the purchases. His Honour said:

If the defendants wish to be heard in relation to quantification of damages, notice must be given on or before 5 pm on Monday 29 May 2023.

[6]        The defendants, by their counsel, have indicated that the claim for damages will be contested but that they admit liability.

[7]        Accordingly, the defendants having admitted liability, I enter judgment as to liability in favour of the plaintiffs against the defendants in each proceeding.

[8]        Ms Cassin, counsel for the plaintiffs objects to the defendants filing a defence in relation to quantum. Ms Cassin correctly points out that pursuant to r 15.9 of the

High Court Rules 2016 (the Rules), once a matter has been listed for formal proof,   a defendant may not file a statement of defence without leave.

[9] That the defendants would be able to take issue with the quantum of damages claimed is inherent in the direction made by Eaton J set out above at [5]. That is reinforced by paragraph [11](c) of his Honour’s Minute where he said if the defendants did not give notice that they wished to be heard on damages, he would determine the formal proof application on the papers. It follows that if the defendants did wish to be heard on the quantum of damages, formal proof would not be entered.

[10]The defendants have received notice of the quantum claimed by the plaintiffs.

[11]      I make the timetable directions set out at paragraph 4 of the defendants’ memorandum of 29 May 2023.

[12]      Pursuant to s 20(1)(f) of the Senior Courts Act 2016, an Associate Judge has jurisdiction to make an assessment of damages where liability has been determined.

[13]      There will be a case management conference with me at 2:00pm on Thursday 20 July 2023.

[14]      The plaintiffs have produced valuation evidence to support the damages claimed. I assume the defendants will be calling valuation evidence as well. If that is the case, the parties are to discuss the conferral of the experts and the completion of  a joint expert report. I would also expect counsel to have agreed on any issues of discovery by the conference date, given such are likely to be limited.

[15]      I allocate 27 and 28 September 2023 as the hearing date of the plaintiffs’ damages claim.

Associate Judge Lester

Solicitors:

Cavell Leitch, Christchurch Copy to Defendants