Boswell v Millar - [2013] NZHC 703

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IN THE HIGH COURT OF NEW ZEALAND

HAMILTON REGISTRY

CIV-2007-419-392 12013] NZHC 703
BETWEEN KATHRYN FRANCES BOSWELL
Plaintiff

AND OWEN ROSS MILLAR
Defendant

Hearing: 5-7 November 2012

Counsel: R J Hollyman and A J B Holmes for Plaintiff

S J Chatwin and D S Quinn for Defendant

Judgment: 10 April 2013

JUDGMENT OF KATZ J

This judgment was delivered by me on 10 April 2013 at 10:00am
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Spencer Legal, Auckland — mail@spencerlegal.co.nz

Copy to: R J Hollyman, Auckland — hollymanashortlandchambers.co.nz

A J B Holmes, Auckland — ant.holmes@gmail.co.nz
Chatwin Legal Limited, Hamilton — schatwin@chatwinlegal.co.nz

Introduction

The plaintiff, Kathryn Boswell, leased part of the defendant, Owen Millar's
farm ("Property") pursuant to a Deed of Lease dated 19 June 2000 ("Lease"). The Lease commenced on 1 June 2000, was for three years and contained a right of renewal for three years. It also contained a right for Ms Boswell to purchase the Property during the term of the Lease or any renewed term, for $150,000.
In 2004 a new Lease document was signed ("2004 Lease"). The term
commenced on 1 April 2004, with a termination date of 31 March 2007. Ms Boswell gave notice of her intention to purchase the Property in August 2006. Mr Millar denied that she had a right of renewal pursuant to the 2004 Lease. A dispute arose as to whether the 2004 Lease was a renewal of the 2000 Lease or a new Lease. Ms Boswell issued proceedings.
A settlement agreement was entered into on 12 February 2008 ("Settlement
Agreement"), the first day of trial. The terms of settlement were that:
(a)Ms Boswell would purchase the Property for $288,000 including
GST;
(b)Both parties were to co-operate 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 ADLS
form in the Auckland district for rural sales ("ADLS Agreement");

Various disputes then arose as to the meaning and effect of the Settlement
Agreement and whether it has been breached by Mr Millar. Those gave rise to the fourth amended statement of claim, which alleges various breaches of contract (first cause of action) and which also includes a claim for reimbursement of rent from I April 2007 to I February 2008 (second cause of action). In addition there is a counterclaim by Mr Millar for equitable interest on the purchase price or, in the, alternative, rent from I February 2008 onwards.'
Prior to trial a number of issues were resolved. As a result, the key issues for
determination are now:
(a)Did Mr Millar breach the Settlement Agreement by failing to co-operate with Ms Boswell in making an application for subdivision? If so, what relief is appropriate?
(b)Did Mr Millar breach the Settlement…

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 [2013] NZHC 703
Case: [2013] NZHC 703
Decision Date: 10 April 2013

CaseChat Overview and Summary

The High Court of New Zealand was tasked with resolving a dispute between Kathryn Boswell and Owen Millar concerning a Settlement Agreement related to the sale of a property. The key issues the court needed to decide included whether Millar breached the Settlement Agreement by failing to cooperate in making a subdivision application, whether Millar breached the Settlement Agreement by entering into it knowing he could not subdivide the land, whether Boswell could recover costs incurred in attempting to resolve alleged breaches, whether Boswell was entitled to a refund of rent, and whether Millar was entitled to rent or interest on the purchase price.

The court found that Millar did not breach the Settlement Agreement by failing to cooperate in the subdivision application. The court interpreted the duty to cooperate pragmatically and found that Millar's actions were reasonable given the context. The court also rejected Boswell's claim that Millar breached the Settlement Agreement by entering into it knowing he could not subdivide the land. The court ruled that Boswell could not recover costs incurred in attempting to resolve alleged breaches of the Settlement Agreement, as these costs were not damages but expenses related to enforcing alleged rights. The court further ruled that Boswell was not entitled to a refund of rent and that Millar's claim for equitable interest or rent in the alternative also failed.

The final orders of the court were that Boswell's breach of contract claims and claim for rent failed, as did Millar's counterclaim for equitable interest or rent. The court indicated that costs should be awarded to Millar on a 2B basis, with leave reserved for either party to file memoranda if they disagreed with this indication.

Orders