Boswell v Millar - [2014] NZCA 314

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA293/2013
[2014] NZCA 314

BETWEEN	KATHRYN FRANCES BOSWELL Appellant
AND	OWEN ROSS MILLAR Respondent

Hearing:	22 May 2014
Court:	Randerson, Winkelmann and Lang JJ
Counsel:	Appellant in person (with Mrs Roberts as McKenzie friend) S S Chatwin and D S Quinn for Respondent
Judgment:	10 July 2014 at 10:30 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe application for leave to adduce further evidence on appeal is dismissed.
CCounsel for the respondent may apply to have Mr Millar’s personal representatives substituted as respondent if required.
DThe appellant must pay costs to the respondent for a standard appeal on a Band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Mr Millar is now deceased. During his life he had extensive dealings with Ms Boswell in respect of her lease of part of his property. Although their relations were initially good, they ultimately deteriorated over the issue of whether Ms Boswell had a right to purchase the leased property and litigation ensued. Although those proceedings were settled the implementation of the settlement has itself led to multiple disputes, some of which led to the issue of the proceeding now the subject of this appeal. In a judgment dated 10 April 2013 Katz J dismissed claims Ms Boswell brought against Mr Millar, and the more limited counterclaim brought by Mr Millar against Ms Boswell.[1] Ms Boswell now appeals the decision of Katz J.

Relevant background

[1]Boswell v Millar [2013] NZHC 703.

Ms Boswell initially leased land (the property) from Mr Millar by deed of lease (the lease) dated 19 June 2000. The lease contained an option for her to purchase the land during the term of the lease or any renewed term. In 2004 a new lease document was signed between the two, which did not contain an option to purchase. A dispute arose as to whether the 2004 lease was a renewal of the 2000 lease and incorporated this option to purchase. Ms Boswell issued proceedings alleging that it did. In 2008 those proceedings were settled on the first day of trial on the following terms:
(a)Ms Boswell would purchase the property for $288,000 including GST;
(b)Both parties were to cooperate in making an application to the Hauraki District Council for subdivision resource consent in respect of the Property;
(c)Mr Millar would be responsible for the costs of the consent application and all costs associated with the subdivision;
(d)The agreement for sale and purchase was to be the standard Auckland District Law Society (ADLS) form for rural sales; and
(e)In the event that the subdivision consent could not be obtained, the sale could proceed as a boundary adjustment at Ms Boswell’s option.
The property formed part of the land comprised in an existing certificate of title, and accordingly, either a subdivision or a boundary adjustment was required so that it could be conveyed…

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 Boswell v Millar

Details

AGLC: Boswell v Millar [2014] NZCA 314
Case: [2014] NZCA 314
Decision Date: 10 July 2014 at 10:30 am

CaseChat Overview and Summary

The case of Boswell v Millar involved an appeal by Kathryn Boswell against the decision of Katz J, who dismissed her claims against Owen Millar and his counterclaim. The central dispute arose from a settlement agreement between the parties concerning the purchase of property. The primary issues in the appeal were whether Millar breached the settlement agreement by failing to cooperate in making an application for subdivision, whether Millar breached the settlement agreement by entering into it knowing he would not be entitled to subdivide the land, whether Millar was liable for costs incurred by Boswell in connection with issues now settled, whether Boswell was entitled to a refund of rent, and whether the trial judge was biased.

The Court of Appeal dismissed the appeal, finding no error in Katz J's reasoning. The Court held that Millar did not breach the duty to cooperate in making the subdivision application, as the duty was context-specific and did not require active joint participation. The Court also found that there was no evidence Millar knew the subdivision application would fail when he entered into the settlement agreement. Regarding costs, the Court confirmed that costs incurred in pursuing claims are not recoverable as damages for breach of contract if the claims are not pursued to a successful judgment. The Court rejected Boswell's claim for a refund of rent, noting the settlement agreement did not determine she had the right to exercise an option to purchase. Finally, the Court found no evidence of bias in Katz J's judgment. The appeal was dismissed, and Boswell was ordered to pay costs to Millar.

Orders