Brodie v Turkmani
[2017] NZHC 2945
•29 November 2017
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 respondentJudgment:
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 Mr Turkmani was “attempting to unilaterally cancel the [A]greement” and was “attempting to frustrate the [A]greement”.
[6] In a judgment delivered on 19 June 2017 (“Judgment”), the Judge found that the Agreement required prompt payment (and delivery of the Vehicle) by the weekend of 20/21 February, or 22 February 2016 at the latest.2 Given Mr Brodie’s failure to pay the balance of the purchase price by that time, the Judge concluded Mr Turkmani had validly cancelled the Agreement. Mr Brodie now appeals the Judge’s findings to this Court.
[7] However, as is immediately apparent from the notice of appeal and amended submissions filed on his behalf, Mr Brodie advances a very different case on appeal to that in the District Court. Mr Brodie’s new case centres on the fact that Mr Turkmani is a registered motor vehicle trader (“registered trader”) pursuant to the Motor Vehicle Sales Act 2003 (“MVSA”).
[8] Mr Brodie says he was not aware Mr Turkmani was a registered trader at the time he bought the Vehicle. He says he (and his counsel) would have taken quite different steps in response to Mr Turkmani’s purported cancellation, had they known this fact at the time.
[9] Mr Brodie’s grounds on appeal are largely based on Mr Turkmani’s alleged failure to comply with statutory provisions applying to registered traders. It is said that Mr Turkmani’s failure to comply with those statutory provisions meant he was not able to validly cancel the Agreement.
[10] The extent of the new case now being run on appeal is confirmed by
Mr Haines’ (counsel for Mr Brodie) submission that the only proper course is to quash the Judge’s decision and remit the matter back to the District Court so that it may be re-pleaded and re-heard.3
[11] Not unsurprisingly, Mr Turkmani opposes that course of action. Mr Rice,
Mr Turkmani’s counsel, submits there is no proper basis upon which a new case ought to be permitted on appeal. There is no doubt that Mr Brodie and his counsel were
aware Mr Turkmani was a registered trader well before the District Court hearing.
2 Brodie v Turkmani [2017] NZDC 12859.
3 The suggestion that the matter be remitted to the District Court was raised for the first time in oral submissions at the hearing of the appeal.
Indeed, Mr Brodie himself refers to this fact in an affidavit sworn in advance of the hearing. Mr Rice accordingly submits that the new arguments raised by Mr Brodie could and should have been raised at trial, and the appeal should be dismissed for that reason alone. Mr Rice further submits the proposed new grounds have no merit in any event. Counsel for Mr Lockwood, Ms Eastwick-Field, broadly supports these propositions.
Background facts
[12] The background facts are set out at [1] to [23] of the Judgment and can be summarised as follows:
(a) On Sunday 14 February 2016, Mr Turkmani agreed to sell and
Mr Brodie agreed to buy the Vehicle for $40,000, and paid a deposit of
$1,600 in cash. Mr Turkmani’s evidence was that payment of the outstanding balance was to occur “urgently”, by Friday 19 February
2016 “at the latest”, so that Mr Brodie could collect the Vehicle “at the latest” over the weekend of 20/21 February 2016. As noted,
Mr Brodie’s evidence was that payment and collection were to occur within “a reasonable time” or within “a few weeks”.
(b)On Wednesday 17 February, Mr Turkmani texted Mr Brodie, inquiring as to when Mr Brodie could send the money. Mr Brodie responded by email later that day saying:
I will be travelling to Auckland early next week to take possession of the vehicle, and will complete the transfer of all monies prior to the handover.
Mr Turkmani says he understood from this email that the transfer of the money would have needed to occur by Friday 19 February, or “Monday
21st [sic] “at the latest”.
(c) Mr Turkmani emailed Mr Brodie’s lawyer on Friday 19 February (the two having corresponded about other matters relating to the sale the previous day), asking when the payment for the vehicle would be sent:
May i ask when payment will be sent? Best not on weekend as it takes longer to process. Cheers
(d)Over the weekend, Mr Turkmani made contact with others who had registered interest in the car on TradeMe, telling them he was unsure whether the purchaser (i.e. Mr Brodie) would be able to complete the sale.
(e) Having received no response from Mr Brodie or his lawyer by Monday
22 February, Mr Turkmani emailed Mr Brodie directly at around midday on 22 February, saying:
I just want to know, are you 100% buying it? Or still thinking? Because i needed the money last week and am still waiting. Thank you.
(f) Having received no response by that evening, Mr Turkmani emailed
Mr Brodie at 7.12 pm on Monday 22 February:
Hi there, please let me know if you are still coming tomorrow? I have been waiting for too long, and you promised to pick up earlier. If you do not want the car i will keep it. Thanks
(g)Still having received no response from Mr Brodie, Mr Turkmani sent emails to Mr Brodie and to Mr Brodie’s lawyer around noon the next day (Tuesday 23 February), purporting to “cancel the deal”:
Hi there, i have decided to cancel the deal as i was promised to receive the money and the car to be picked up by sunday, which keeps on getting post poned. Please send me your account number and i will refund your $1600 deposit.
(h) Mr Brodie’s lawyer responded a very short time later (by email at
12.44 pm) rejecting the purported cancellation:
Hi, my client does not accept cancellation. He is coming to Auckland in the next couple of days but has been delayed by a funeral.
(i)Mr Brodie and his lawyer made no further contact with Mr Turkmani over the rest of the week, and so Mr Turkmani emailed Mr Brodie on at 3 pm on Friday 26 February, again purporting to cancel the deal:
Hello, i am writing to inform you that the deal of the 220SE is off. I have attached below our verbal contract which you promised to have the car picked up and paid for by the Weekend or Monday.[4] I also emailed you many times BEFORE and during the weekend to make sure if you still want the car, and asking when payment will be sent, and you chose to ignore my emails. I have therefore been clueless and waiting, making the assumption you still want the car, I have also had a look at your trademe feedback which shows you do this very often. I have taken screenshots of your feedback. Thank you.
(j)Mr Turkmani also texted a similar message to Mr Brodie, further stating that Mr Brodie would be trespassed if he returned to
Mr Turkmani’s property.
Further steps taken by Mr Brodie in this Court
[13] It is necessary to address further steps Mr Brodie has taken in this Court since filing his appeal.
[14] On 2 October 2017, Mr Brodie applied for leave to adduce new evidence on appeal. The proposed new material included evidence as to what steps Mr Brodie says he (and his counsel) would have taken at the time of Mr Turkmani’s purported cancellation of the Agreement had they been aware that he was a registered trader.
[15] Mr Brodie’s application was heard by van Bohemen J on 1 November 2017. At the conclusion of the hearing, van Bohemen J dismissed the application. In reasons for judgment which followed shortly thereafter, van Bohemen J noted that:5
(a) The fact Mr Turkmani was a registered trader was known by Mr Brodie at the trial; and
(b) The issue of Mr Turkmani’s status as a registered trader was before the
Court (given the Judge’s reference to this fact in his judgment).
[16] Van Bohemen J accordingly concluded as follows:
4 This “verbal written contract” was a voice recording that was played in evidence at the District
Court hearing, but which has not been made available to me on appeal.
5 Brodie v Turkmani [2017] NZHC 2720 at [13]-[15].
[15] Since the issue was clearly before the court at the first instance hearing, I cannot give any credence to the contention that Mr Turkmani’s alleged concealment of that status is a special reason of the kind required by r
20.16 of the High Court Rules. If there had been an issue about Mr Turkmani’s status as a motor vehicle trader and how his alleged failure to disclose that
status bore on the issues at the hearing, Mr Brodie’s counsel had every
opportunity to raise those issues at the hearing.
New arguments
[17] Notwithstanding van Boheman J’s refusal to admit the new evidence,
Mr Haines sought to run the following new arguments on appeal before me:
(a) Because of the statutory requirement that a registered trader keep a record of each contract for the sale of a motor vehicle,6 the Judge was wrong to rely (in part) on an oral recording of discussions between
Mr Turkmani and Mr Brodie to determine some of the Agreement’s terms;
(b)It was a condition precedent to the Agreement that Mr Turkmani perform in accordance with his statutory obligations;
(c) Alternatively, it was an implied term of the Agreement that
Mr Turkmani perform in accordance with his statutory obligations;
(d)Because Mr Turkmani failed to perform in accordance with his statutory obligations, he was in breach of the Agreement and thus unable to validly cancel the Agreement; and/or
(e) Mr Turkmani’s failure to disclose that he was a registered trader amounts to misleading and deceptive conduct for the purposes of s 9 of
the FTA.
6 Section 21(1) of the MVSA.
Approach to new arguments on appeal
[18] An appeal to this Court from the District Court is by way of rehearing.7 For that reason, the appeal is (ordinarily) concerned with a re-examination of matters considered in the lower court or tribunal, i.e. rather than new matters.8 A litigant will be expected to “put his or her best foot forward” at trial, and ought not to be permitted to have a “second bite at the cherry”.9 The Supreme Court has explained the reason for limiting what can be argued on appeal in the following terms:10
[15] There are strong policy reasons why the courts should take a restrictive approach to applications by parties to litigation who seek to alter the basis of the case that they presented at trial, after judgment has been given. They reflect a strong societal interest in the final determination of concluded litigation.
[19] There is, however, a discretion to hear new arguments on appeal.11 It is more likely to be exercised in favour of new points being raised if they are limited to issues of law and the respondent will not be prejudiced.12 In this context, in Savill v Chase Holdings (Wellington) Ltd, McMullin J stated:13
The fact that the point was not raised [in the court below] is not fatal to it being taken on appeal if the pleadings and the evidence leave it open to be taken. [Emphasis added]
[20] Finally, in McCollum v Thompson, the Court of Appeal said the following:14
[53] …an appellate court, just like a trial court, must ensure in applying the relevant rules that the conduct of proceedings is procedurally fair. It is not fair to allow a new tack if there is a real possibility that the party affected by the change of position will be materially disadvantaged.
[54] The unfairness stems from the fact that if the party opposing the raising of a new point would, on an objective assessment, have fairly wished to run the case differently in the trial court had the point been raised, the appeal court cannot provide that opportunity without ordering a new trial. To put the
7 High Court Rules 2016, r 20.18.
8 McGechan on Procedure (online loose-leaf ed, Thomson Reuters) at [HR 20.18.04]. See also Pratt v Wanganui Education Board [1977] 1 NZLR 476 (CA); Wool Board Disestablishment Co Ltd v Saxmere Company Ltd [2007] NZCA 349; Blueskin Bay Forest Heights Ltd v Paterson Pitts Partners Ltd [2014] NZCA 268; McCollum v Thompson [2017] NZCA 269, [2017] NZAR 1106.
9 Blueskin Bay Forest Heights Ltd v Paterson Pitts Partners Ltd [2014] NZCA 268 at [21]-[22].
10 Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZSC 1, [2007] 2 NZLR 124.
11 McCollum v Thompson [2017] NZCA 269, [2017] NZAR 1106 at [52].
12 Motor Vehicle Dealers Institute Inc v UDC Finance (1991) Ltd [1994] 1 NZLR 659 (CA) at 664.
13 Savill v Chase Holdings (Wellington) Ltd [1989] 1 NZLR 257 (CA) at 307.
14 McCollum v Thompson [2017] NZCA 269, [2017] NZAR 1106.
party to the delay and expense of a new trial because something that could have been raised in the trial court was not raised would be unjust. Indeed, it would run against the principle that litigation should be final, and it would bring the administration of justice into disrepute.
[Emphasis added]
Should the new arguments be permitted on appeal?
[21] I consider the principles summarised above are directly applicable in this case and lead to the inescapable conclusion that Mr Brodie cannot be permitted to raise on appeal the new arguments which underpin the first to fourth and sixth grounds of appeal (being Mr Turkmani’s status as a registered trader). I have reached this view for the following reasons:
(a) Mr Brodie (and his counsel) knew Mr Turkmani was a registered trader some ten months before the trial in the District Court, as a result of Mr Turkmani giving discovery of his registration documentation. This fact was also clearly spelled out in Mr Turkmani’s brief of evidence exchanged in advance of the hearing; addressed in one of Mr Brodie’s affidavits filed in advance of the trial; was subject to (brief) cross- examination at trial by Mr Brodie’s counsel; and referenced (also briefly) in the Judgment.
(b)The arguments now raised on appeal accordingly could and should have been advanced by Mr Brodie at trial.
(c) The pleadings and evidence at trial do not leave it open for these new matters to be taken up on appeal. The very fact that Mr Brodie applied for leave to adduce further evidence confirms this point. Further, Mr Haines rightly notes that the case would need to be re-pleaded. For example, a new cause of action is envisaged (pursuant to s 9 of the Fair Trading Act 1986 (“FTA”)). New pleadings of conditions precedent to the Agreement and/or terms to be implied into the Agreement are also raised.
(d)The respondents (and in particular the first respondent) would have therefore taken quite a different approach had these matters been raised
at trial, including amended pleadings, calling additional evidence15 and no doubt engaging in quite different cross-examination of Mr Brodie (and any other witnesses called on his behalf).16
(e) The fact that the matter would need to be remitted to the District Court for re-pleading and re-hearing is real and significant prejudice to the respondents. Ultimately, the respondents should not be put to the time and expense of a further substantive hearing because Mr Brodie failed to “put his best foot forward” at trial.
[22] No doubt recognising these difficulties, Mr Haines submits there is nevertheless a real need, from a broader perspective of consumer protection, to have the matter re-heard. This is said to be because the Judgment stands for the proposition that a registered trader can ignore a range of important statutory requirements, with there being no consequences for related contracts entered into by that registered trader.
[23] With respect to Mr Haines’ spirited argument on this point, that is not right. The short point is that the Judgment does not say that a registered trader can ignore statutory requirements with there being no consequence to related contractual arrangements. Rather, it simply deals with the issue of whether Mr Turkmani validly cancelled the Agreement. The reason the Judgment does not say what Mr Haines ascribes to it is because the consequences of Mr Turkmani’s status as a registered trader were never raised at trial. For that reason, the Judgment cannot stand as a broader precedent on issues that were never put to or decided by the Judge.
[24] I am reinforced in my conclusion that Mr Brodie cannot be permitted to raise the new arguments on appeal by the fact they lack obvious and clear merit.17 Subject to those matters discussed at [26] below, the MVSA does not state or suggest that, if
the relevant statutory requirements are not met, any contract entered into by a
15 For example, it was not conceded that the various statutory provisions applied in this case, which turns on whether the Vehicle is a “used motor vehicle”. This would require evidence as to the Vehicle’s prior registration in this or any other country; see s 6 of the MVSA.
16 For example, as to his suggestion that he and/or his counsel would have taken quite a different approach to Mr Turkmani’s cancellation of the Agreement had they known at the time of his status as a registered trader.
17 At the outset of the appeal hearing, I said that I would hear from Mr Haines on the merits of the new arguments, but noted I had real concerns as to whether they could be entertained on appeal.
registered trader will be void or voidable, or the rights and obligations of the parties will otherwise be affected. For example, a failure to keep a record of any contract to sell a used motor vehicle in accordance with s 21(1) of the MVSA is an offence, liable on conviction to a fine not exceeding $2000.18 It does not have any stated contractual consequences.
[25] Mr Haines relies primarily on Mr Turkmani’s failure to provide a Consumer Information Notice to Mr Brodie prior to the Agreement being entered into.19 It is correct that s 14 of the MVSA, together with the Regulations, requires a Consumer Information Notice to be given to a buyer of a used motor vehicle.20 The registered trader is also required to obtain written acknowledgement from the buyer “immediately before the sale of the vehicle” that the buyer has received the notice.21
Section 101 of the MVSA deems a failure to comply with s 14 of the MVSA to be a contravention of s 28 of the FTA (for the purposes of s 40 of the FTA).
[26] However, a breach of s 28 of the FTA does not in and of itself affect any underlying contract entered into by the registered trader. Rather, breach of s 28 is an offence, subject to a fine on conviction of (in the case of an individual) $10,000.22
Further, a breach of s 28 also gives rise to potential civil remedies under s 43 of the FTA. Pursuant to s 43, and importantly, at the court’s discretion, the court may make a range of orders in relation to any relevant contract, including an order that the contract is void or varying it in a manner specified in the order.
[27] Had Parliament intended compliance with the statutory requirements upon which Mr Brodie relies to be a “condition precedent” to a contract to sell a used motor vehicle, or an implied term of any such contract, it would have said so. Instead, having turned its mind to the consequences of a failure to comply with the statutory requirements, Parliament has set out quite specific consequences which do not include
the contractual consequences advanced on Mr Brodie’s behalf. Further, Mr Haines
18 Sections 105(1) and 116(1) of the MVSA.
19 Section 14(1) of the MVSA. Section 15 of the MVSA sets out the particulars which must be contained in a Consumer Information Notice, which includes those matters required by the Consumer Information Standards (Used Motor Vehicles) Regulations 2008 (“Regulations”).
20 Regulation 7.
21 Regulation 8.
22 Section 40 of the FTA.
did not refer me to any authority which stands for the proposition that implied into any consumer contract is a term that the buyer’s obligation to pay for the goods, or that the seller’s right to cancel for the buyer’s breach, is conditional upon the vendor having complied with all statutory obligations.
[28] I record, however, that the above are not concluded views. Matters of this nature are properly dealt with after full evidence and argument in the ordinary way. I am also mindful of Mr Rice’s caution that it is not accepted the statutory requirements would necessarily apply in this case in any event. Nevertheless, consideration of the new matters raised on Mr Brodie’s behalf confirms there is no obvious and clear miscarriage of justice, which might otherwise have militated in favour of remitting the matter to the District Court for re-hearing.
Other grounds of appeal
[29] Of the nine grounds of appeal advanced by Mr Brodie, only three do not arise out of the new matters discussed above. However, Mr Brodie’s written submissions on appeal were not directed to these grounds. I invited Mr Haines to make further oral submissions on these three grounds, but he confirmed he did not have anything further to add to the written submissions and that the “focus” of the appeal was the statutory matters discussed above.
[30] It is not the function of a court on appeal to craft and advance arguments on behalf of an appellant which they have not advanced themselves. This is particularly so when the appellant is represented by counsel. Nevertheless, given the remaining grounds of appeal have not been abandoned in the formal sense, I (briefly) address those grounds in the balance of this judgment.
[31] The fifth ground of appeal is framed as follows:
The Judge was wrong in fact and law when at [31] he determined the terms of the contract between the First Respondent and the Appellant.
[32] The seventh ground of appeal is that:
The Judge was wrong in fact and law in determining that the first respondent had a right to cancel the contract on 22 February 2016 after the appellant had failed to pay the balance owing under the contract.
[33] The eighth ground of appeal reads as follows:
The Judge was wrong in fact and law when he commented that the appellant could have paid the first respondent notwithstanding that the first respondent had cancelled the contract and prior to the first respondent withdrawing the cancellation and reinstating the contract.
[34] As noted, the Judge found that the parties expected there to be “prompt payment” by Mr Brodie of the balance of the purchase price, and in particular that the Vehicle would be picked up by Mr Brodie “on the weekend of 20/21 February or Monday 22 February at the latest.23 The Judge rejected Mr Brodie’s evidence that the Agreement only required payment (and therefore collection of the Vehicle) within a “reasonable time” or within “a few weeks”. On this basis, the Judge found that Mr Brodie was in breach of the Agreement by failing to pay the balance of the purchase price for the Vehicle on or before 22 February 2016. Further, to the extent that time was not of the essence, the Judge held that Mr Turkmani’s communication of 23
February 2016 clearly put Mr Brodie on notice that time for payment was at that point of the essence, such that the Agreement was validly cancelled by Mr Turkmani on
26 February 2016.
[35] Having reviewed the evidence, I agree with the Judge’s conclusions and in particular, that Mr Turkmani validly rescinded the Agreement.24
[36] Mr Turkmani’s account of events (i.e. that payment was to occur “urgently”, and by Friday 19 February) was not seriously challenged in cross-examination. I also consider the written record of the parties’ correspondence between 14 and 22 February clearly supports Mr Turkmani’s claim that payment was to occur by Friday 19
February. Mr Turkmani repeatedly chased Mr Brodie for urgent payment, and not
23 Judgment, at [31], [32] and [38]. Payment for the vehicle would have needed to be made before or at the time of the Vehicle’s collection. This was not in dispute.
24 The parties agreed that recission was to be assessed pursuant to the Sale of Goods Act 1908 and its associated common law and equitable rules, rather than s 7 of the Contractual Remedies Act
1979: see Moodie v Agricultural Ventures Ltd [1998] 3 NZLR 129 (CA) at 135.
once did Mr Brodie respond to the effect that payment for and collection of the Vehicle was not required for a number of weeks.
[37] In view of Mr Turkmani’s statements to Mr Brodie that he “needed the money urgently” and that other buyers were also interested in the vehicle, it would have been open to the Judge to find that the parties had implicitly agreed that the timing of payment was “of the essence”. If that were so, Mr Turkmani could have validly rescinded the Agreement having not received payment by Friday 19 February (or Monday 22 February, at the latest). In other words, Mr Turkmani would not have needed to give Mr Brodie prior notice that time was now of the essence (and allowed further time to perform) before taking steps to rescind.
[38] Mr Turkmani’s case, however, was not run on this basis – and in my view, the Judge’s conclusions still stand on the basis of Mr Turkmani’s case as put before the Judge and before me. Mr Rice submitted on appeal that Mr Turkmani’s purported cancellation on Tuesday 23 February was not accepted by Mr Brodie’s solicitor, who “correctly” regarded the Agreement as still on foot. As any repudiatory breach had not been accepted by Mr Brodie, the Agreement remained alive and so it was not necessary for Mr Turkmani to “withdraw” the cancellation and “reinstate” the Agreement, as suggested in the eighth ground of appeal. I find that by this time,
Mr Turkmani’s communication of 23 February comprised reasonable notice that payment was to be made forthwith, and Mr Brodie’s lawyer appears to confirm that payment would occur “in the next couple of days”. Mr Brodie also accepted in cross- examination that as a result of Mr Turkmani’s communication on 23 February, he was aware “Mr Turkmani wanted payment pretty smartly.” But Mr Brodie still did not make prompt payment. Accordingly, even if the timing of payment had not originally been agreed to be of the essence, I find that Mr Turkmani had the right to validly rescind the agreement on Friday 26 February (this being more than 72 hours after the email from Mr Brodie’s lawyer on 23 February 2016).
The claim in relation to the second respondent
[39] Given these conclusions, it is not necessary for me to address Mr Lockwood’s position, and in particular, whether he was a bona fide purchaser for value without notice of any earlier sale.
Result
[40] The appeal is dismissed.
[41] The parties are to seek to agree costs. Costs on the application to adduce further evidence were reserved. These should also be fixed. My provisional but non- binding view is that costs of both the application and the appeal are to follow the event in the ordinary way, on a 2B basis.
[42] If the parties are unable to agree on costs:
(a) The respondents are to file memoranda in relation to costs within
10 working days of the date of this judgment;
(b) Mr Brodie is to file a memorandum in response within 5 working days
of receipt of the last of the respondents’ memoranda.
[43] The costs memoranda are not to exceed 5 pages in length.
Fitzgerald J