Blair v Street - [2022] NZHC 1344

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-743

[2022] NZHC 1344

IN THE MATTER of an award of costs made in the District Court

BETWEEN

ANDREW DOUGLAS BLAIR

Appellant

AND

MICHAEL JOHN STREET, JOAN ISABELLA STREET, PHILIP JOHN ENGLAND AND CHRISTOPHER JOHN STREET

Respondent

Hearing: 7 June 2022 (via VMR)

Appearances:

D MacKenzie for Appellant

R K Macdonald for Respondent

Judgment:

8 June 2022

JUDGMENT OF ISAC J

Introduction

[1] Mr Blair appeals a decision of Judge Tompkins in the District Court awarding the respondents indemnity costs of $13,581.1 He says the Judge failed to apply the indemnity costs principles in the District Court Rules 2014 and, in any case, there was no basis to justify the award.

[2] The proceeding is striking for the disproportionate use of resources it has required to resolve an issue capable of resolution between the parties.

1 Street v Blair [2021] NZDC 20771.

BLAIR v STREET, STREET, ENGLAND AND STREET [2022] NZHC 1344 [8 June 2022]

Background

[3] On 31 December 2020, Mr Blair entered an agreement for sale and purchase of a residential property owned by the respondent trustees. The agreement was conditional on Mr Blair obtaining a building report that was satisfactory to him, albeit “on the basis of an objective assessment”.2

[4] Mr Blair obtained the report and, on 26 January 2021, his solicitor gave notice of cancellation of the agreement. There does not appear to be any real argument that the report supported Mr Blair’s decision to cancel the agreement. Regardless, the property was subsequently sold to a different purchaser at a higher price. So the Trustees have suffered no loss as a result of Mr Blair’s cancellation of the agreement.3 They certainly did not suffer any loss as a result of Mr Blair’s initial refusal to provide the complete building report.

[5] Later the same day, the Trustees requested a copy of the builder’s report as they were entitled to do under cl 9.4(5) of the agreement. It provides:

If the purchaser avoids this agreement for non-fulfilment of this condition pursuant to clause 9.10(5), the purchaser must provide the vendor immediately upon request with a copy of the building inspector’s report.

[6] The following day, 27 January 2021, Mr Blair’s solicitor provided a three-page “client summary” document that the building inspector had provided along with their full report. The building inspector advised Mr Blair that the summary was supplied as a separate document so that it could, upon request, be provided to vendors in response to a request under cl 9.4(5). The inspector explained the reason for this approach in these terms:

If the vendor requests the report subject to clause [9.4(5)] of the Agreement for Sale and Purchase of Real Estate, we would advise release of the Summary only to the vendors Solicitor. The Auckland District Law Society released a guidance document advising that the report need not follow any particular format, but must contain sufficient information…

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 Blair v Street

Details

AGLC: Blair v Street [2022] NZHC 1344
Case: [2022] NZHC 1344
Decision Date: 8 June 2022

CaseChat Overview and Summary

In Blair v Street, the High Court of New Zealand reviewed a decision from the District Court, where Judge Tompkins had awarded the respondents indemnity costs of $13,581. The case revolved around an agreement for the sale of a property between Andrew Blair and the respondent trustees, which was contingent upon Blair obtaining a satisfactory building report. Blair provided a summary of the report instead of the full report, leading to the trustees filing a claim for specific performance and indemnity costs. The High Court found that the District Court judge erred in law by not considering the specific conditions for awarding indemnity costs and by not assessing the reasonableness of the costs claimed.

Blair argued that the District Court judge failed to apply the relevant rules and principles governing indemnity costs and that his conduct did not warrant such an award. The High Court agreed with Blair, noting that the judge did not reference the relevant rule or indemnity costs in the judgment. Furthermore, the court found that Blair's conduct, while not ideal, did not meet the exceptionally bad behaviour required for an award of indemnity costs. Additionally, the court held that the judge should have considered the reasonableness of the costs claimed, which was not possible due to the lack of detailed information provided.

The High Court set aside the District Court's costs order and, considering the matter afresh, awarded the trustees costs on a 2A basis for steps in the District Court proceeding up to 23 February 2021. The court also ordered that the trustees repay Blair a proportion of the costs he had paid them. Regarding the appeal, the High Court awarded Blair costs on a 2B basis, along with disbursements as fixed by the Registrar.

Orders