Bright v Wolfbrook Residential Limited - [2024] NZHC 1272

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-795

[2024] NZHC 1272

BETWEEN
PAMELA ALISON BRIGHT

Plaintiff/Respondent

AND

WOLFBROOK RESIDENTIAL LIMITED

First Defendant/Applicant

STEVEN CAVELL BROOKS
Second Defendant/Applicant

JAMES OWEN COONEY

Third Defendant/Applicant

Hearing: 1 May 2024

Appearances:

M Freeman for Plaintiff/Respondent

S Campbell and C Martin for Defendants/Applicants

Judgment:

22 May 2024

JUDGMENT OF ASSOCIATE JUDGE SKELTON

[1]Before me are two applications by the defendants:

(a)an application for change of registry from Wellington to Christchurch under r 5.1 of the High Court Rules 2016 (HCR); and

(b)an application for security for costs against the plaintiff under r 5.45 of the High Court Rules.

[2] The defendants contend that the proper registry is Christchurch and/or that it is more convenient to the parties. The defendants also contend that there is reason to

BRIGHT v WOLFBROOK RESIDENTIAL LIMITED [2024] NZHC 1272 [22 May 2024]

believe that the plaintiff will be unable to pay their costs if she is unsuccessful, and that an order for security for costs is just in all the circumstances.

[3] Both applications are opposed by the plaintiff. The plaintiff contends that Wellington is the proper registry because some material part of the cause of action arose in Upper Hutt and/or Wellington is more convenient to the parties. The plaintiff refutes the contention that she would be unable to pay the defendants’ costs, and says that in any event it is not just for an order to be made.

Background

[4] The plaintiff (Ms Bright) claims that the first defendant (Wolfbrook) solicited her to sell her property at 58 Martin Street, Upper Hutt as part of a property development venture, and used Fix My Property Ltd (FMP) as an intermediary for the purchase. Ms Bright and FMP executed the contract for sale and purchase of the property on 16 December 2021. The contract became unconditional on 9 March 2022. The settlement date was 9 November 2022.

[5] Ms Bright contends that, in reliance on the contract, she entered into a contract to purchase a different property at 56 McLeod Street, Upper Hutt for $938,000, which settled on 27 April 2022. Ms Bright arranged bridging finance of $918,000 until the settlement of the sale of 58 Martin Street.

[6] FMP did not settle the purchase of 58 Martin Street on 9 November 2022 and has not taken any steps to settle the purchase or otherwise perform the contract, despite Ms Bright issuing a settlement notice and a statutory demand for default interest for late settlement. FMP was placed into liquidation by resolution of its shareholders on 30 June 2023.

[7]Ms Bright has sued the defendants pleading the following causes of action:

(a)First, Ms Bright claims that Wolfbrook as the principal purchaser (FMP acting as its agent) repudiated the contract and is liable for breach of contract.

(b)Second and alternatively, Ms Bright claims that Wolfbrook engaged in unconscionable conduct under ss 7 and 8, and misleading and deceptive conduct under…

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.

Keep reading for free

Create a free CaseChat account to read Bright v Wolfbrook Residential Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZHC 1272
Decision Date: 22 May 2024

CaseChat Overview and Summary

In the case of Bright v Wolfbrook Residential Limited, Pamela Alison Bright initiated proceedings against Wolfbrook Residential Limited, Steven Cavell Brooks, and James Owen Cooney. Bright alleges that Wolfbrook Residential Limited, through its agent Fix My Property Ltd (FMP), repudiated a contract for the sale of a property in Upper Hutt and engaged in misleading and deceptive conduct. Bright also claims that the directors of FMP breached their duties to the company and its creditors. The defendants applied for a change of registry from Wellington to Christchurch and for security for costs.

Regarding the registry, the Court found that Wellington was the proper registry as some material parts of the cause of action arose in Upper Hutt, which is nearer to where Bright resides. The Court dismissed the application for transfer to Christchurch, stating that the issue of convenience should be addressed at a later stage.

On the issue of security for costs, the Court found that there was a reasonable inference that Bright would be unable to pay the defendants' costs if unsuccessful. The Court considered factors such as the apparent merits of Bright's claim, the oppressiveness of denying security to the defendants, and the potential deprivation of Bright's ability to advance her claim. The Court concluded that it was just in all the circumstances to order security for costs, provided it was in the form of a mortgage security over Bright's property, to avoid the need for her to sell her property to pay the costs.

The Court ordered that Bright provide security for costs in the sum of $139,348 by way of a mortgage security against her property. Counsel for the parties were directed to confer and agree on consent orders regarding the provision of the mortgage security, including the timeframe for its provision by Bright. If the mortgage security was not provided within the agreed period, the proceedings would be stayed.

Regarding costs, the Court indicated that costs should lie where they fall, but allowed for memoranda to be filed if either party disagreed with this preliminary view.

Orders