Brodie v Turkmani - [2017] NZHC 2945

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1633 [2017] NZHC 2945

IN THE MATTER
of an appeal in terms of Part 20 of the

High Court Rules 2016

BETWEEN

BERNARD WILLIAM BRODIE Appellant

AND

BASSAM TURKMANI First Respondent

STEVEN GRAHAM LOCKWOOD Second Respondent

Hearing: 21 November 2017

Counsel:

QS Haines for appellant
PL Rice for first respondent
M Eastwick-Field and CE Grenfell for second respondent

Judgment:

29 November 2017

JUDGMENT OF FITZGERALD J

[As to appeal against decision of the District Court]

This judgment was delivered by me on 29 November 2017 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: J Dallas, Wellington
Christopher Taylor, Auckland (C Taylor) Russell McVeagh, Auckland

Brodie v Turkmani [2017] NZHC 2945 [29 November 2017]

Introduction and background

[1] The respondent (“Mr Turkmani”) owned a 1963 Mercedes Benz 220SE motor vehicle (“Vehicle”). It was in a poor condition. He wanted to sell it on an “as is, where is” basis, and advertised it for sale on TradeMe. The appellant (“Mr Brodie”) responded to the TradeMe advertisement, and on 14 February 2016, visited Mr Turkmani to inspect the Vehicle. Mr Brodie and Mr Turkmani entered into an agreement that day by which Mr Turkmani agreed to sell Mr Brodie the Vehicle for
$40,000 (“Agreement”). Mr Brodie paid a deposit of $1,600.

[2] The parties did not commit in writing to the time by which Mr Brodie was to pay the balance of the purchase price and Mr Turkmani was to deliver the Vehicle.
Mr Turkmani said the parties agreed that the Vehicle would be paid for and collected by Mr Brodie by the following weekend at the latest, namely 20/21 February 2016. Mr Brodie said the parties agreed that payment and collection of the Vehicle would occur within a “reasonable time”, or in “a few weeks”.

[3] By 23 February 2016, Mr Brodie had not paid the balance of the purchase price. This led to Mr Turkmani cancelling the Agreement. He later sold the vehicle to the second respondent (“Mr Lockwood”).

[4] Mr Brodie disputes the validity of Mr Turkmani’s cancellation of the Agreement. He commenced proceedings in the District Court. The primary issue before Judge G M Harrison was the validity (or otherwise) of Mr Turkmani’s cancellation. All parties agreed that Mr Lockwood’s position only became relevant if the cancellation was held to be invalid. If that were the case, it would have been necessary to consider whether Mr Lockwood was a bona fide purchaser for value without notice of the prior sale to Mr Brodie.

[5] Mr Brodie’s case in the District Court was quite straightforward. On the pleadings, there was no dispute that a lawful agreement had been entered into. The
key issue was, as noted, whether Mr Turkmani had validly cancelled the Agreement.1

1 Mr Brodie’s statement of claim simply pleaded the factual background, the existence of the “lawfully binding” Agreement and that…

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 Brodie v Turkmani

Details

AGLC: Brodie v Turkmani [2017] NZHC 2945
Case: [2017] NZHC 2945
Decision Date: 29 November 2017

CaseChat Overview and Summary

Bernard William Brodie appeals against the District Court decision that Bassam Turkmani validly rescinded the agreement to sell to Brodie a 1963 Mercedes Benz 220SE motor vehicle. Turkmani had advertised the vehicle on TradeMe for sale on an “as is, where is” basis. Brodie responded to the TradeMe advertisement, inspected the vehicle and agreed to buy it for $40,000. Brodie paid a deposit of $1,600 and the balance was to be paid by a time which was not agreed to in writing. Turkmani asserts that the balance was to be paid by the weekend of 20/21 February 2016, or by Monday 22 February 2016 at the latest. Brodie claims the balance was to be paid within a “reasonable time” or in “a few weeks”. Turkmani cancelled the agreement when Brodie did not pay the balance by 23 February 2016. Brodie commenced proceedings in the District Court disputing the validity of the cancellation and Turkmani later sold the vehicle to Steven Graham Lockwood. The appeal raises a number of grounds, including the argument that Turkmani’s status as a registered motor vehicle trader under the Motor Vehicle Sales Act 2003 (MVSA) meant that he was not able to validly cancel the agreement. Turkmani’s status as a registered trader was known by Brodie and his counsel well before the District Court hearing. The Court held that Brodie’s new arguments could and should have been raised at trial. The appeal court is not permitted to hear new arguments on appeal unless the pleadings and evidence leave it open to be taken. In this case, the respondents would have taken a quite different approach had the matters been raised at trial. There would have been amended pleadings, additional evidence called and different cross-examination of witnesses. The respondents should not be put to the time and expense of a further substantive hearing because Brodie failed to “put his best foot forward” at trial. The appeal is dismissed.

Orders