Brodie v Turkmani
[2017] NZHC 2720
•7 November 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-001633 [2017] NZHC 2720
BETWEEN BERNARD WILLIAM BRODIE
Appellant
AND
BASSAM TURKMANI First Respondent
STEPHEN GRAHAM LOCKWOOD Second Respondent
Hearing: 1 November 2017 Appearances:
Q Haines on behalf of J D Dallas for the Appellant
P L Rice for the First RespondentM Eastwick-Field and C Grenfell for the Second Respondent
Judgment:
7 November 2017
JUDGMENT OF VAN BOHEMEN
This judgment was delivered by me on Tuesday, 7 November 2017 at 1:30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
Solicitors: JD Dallas, Wellington
Russell McVeagh, Auckland
Counsel: P Rice, Auckland
BRODIE v TURKMANI & Anor [2017] NZHC 2720 [7 November 2017]
Introduction
[1] Bernard Brodie, applied for leave to adduce further evidence for the hearing of his appeal against the decision of District Court Judge Harrison, which held that the respondent, Bassam Turkmani, had validly cancelled a contract between Mr Brodie and Mr Turkmani for the purchase of a classic car — a 1963 Mercedes Benz 220 SE.
[2] The evidence that Mr Brodie sought to adduce is:
(a) An affidavit sworn by Mr Brodie’s solicitor, John Langford, on
21 August 2017, regarding the fact and consequences of Mr Brodie not being aware that Mr Turkmani was a registered motor vehicle trader; and
(b)A fourth affidavit of Mr Brodie sworn on 22 September 2017, regarding the records of Mr Brodie’s mobile telephone showing calls made by Mr Brodie to Mr Turkmani prior to the cancellation of the contract.
[3] As I said at the end of the hearing of the application on 1 November 2017, I
decline the application. My reasons follow.
District Court decision
[4] Mr Brodie initiated a proceeding seeking specific performance of a contract between Mr Brodie and Mr Turkmani for the sale of the Mercedes or, in the alternative, damages of $200,000 so Mr Brodie could purchase an alternative 1963 Mercedes Benz
220 SE. The issue at trial was whether Mr Turkmani had validly cancelled his contract with Mr Brodie.
[5] In his judgment,1 District Court Judge Harrison focused on what had happened in the various dealings between Mr Turkmani on the one hand and Mr Brodie and Mr Brodie’s solicitor on the other, for the purpose of deciding whether the contract between Mr Brodie and Mr Turkmani had been validly cancelled.
1 Brodie v Turkmani [2017] NZDC 12859.
[6] That evaluation included:
(a)The advertisement placed by Mr Turkmani on TradeMe for the sale of a 1963 Mercedes Benz 220 SE on an “as is where is” basis;
(b)Mr Brodie’s visit to Auckland from Wellington on 14 February 2016 to view the car at Mr Turkmani’s home, Mr Brodie’s agreement during that visit to buy the car for $40,000, the payment of a deposit of $1,600 by Mr Brodie, and the arrangements agreed between Mr Turkmani and Mr Brodie regarding payment of the balance of the purchase price and collection of the car;
(c)Subsequent correspondence between Mr Brodie and Mr Turkmani, and between Mr Brodie’s solicitor, Mr Langford, and Mr Turkmani, between Wednesday 17 February 2016 and Monday 22 February 2016 about the previous ownership of the car and about when payment would be made and the car collected. This included Mr Turkmani’s email messages seeking reassurance that Mr Brodie intended to complete the purchase;
(d)Mr Turkmani’s email to Mr Brodie on Tuesday 23 February 2016 saying he intended to cancel the deal because of non-performance by Mr Brodie and Mr Langford’s email in response saying Mr Brodie did not accept cancellation;
(e)Mr Turkmani’s email and text message to Mr Brodie on the afternoon of Friday 26 February 2016 confirming Mr Turkmani’s cancellation of the contract; and
(f) Mr Turkmani’s sale of the car later in the evening of Friday 26 February
2016 to Mr Lockwood for $60,000.
[7] The Judge held2 that the contractual arrangement between Mr Brodie and
Mr Turkmani was that the vehicle would be picked up on the weekend of 20–
21 February 2016 or Monday 22 February at the latest, and that Mr Brodie had been in breach of his obligation pursuant to s 29 of the Sale of Goods Act 1908 to accept the vehicle by collecting it and paying for it at the agreed time. The Judge also held that it was implicit from the correspondence on 22 and 23 February 2016 that if payment had been made by Thursday 25 February 2016, Mr Turkmani would have accepted it.
[8] There was no discussion in the judgment of the advice Mr Brodie had received from Mr Langford or of any reliance of Mr Brodie on that advice. Nor was there any discussion in the judgment of any telephone calls, answered or unanswered, between Mr Brodie and Mr Turkmani between 22 and 26 February 2016.
Requirements for leave to adduce further evidence on appeal
[9] The admission of further evidence on appeal is governed by r 20.16 of the High
Court Rules. Rule 20.16 provides:
20.16 Further evidence
(1)Without leave, a party may adduce further evidence on a question of fact if the evidence is necessary to determine an interlocutory application that relates to the appeal.
(2)In all other cases, a party to an appeal may adduce further evidence only with the leave of the court.
(3)The court may grant leave only if there are special reasons for hearing the evidence. An example of a special reason is that the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.
(4)Further evidence under this rule must be given by affidavit unless the court directs otherwise.
2 At [42]-[43].
Positions of parties on application for leave
[10] Mr Haines appeared on behalf of Mr Brodie and spoke to written submissions filed by Mr Dallas in support of the application for leave. The essential contentions advanced by Mr Haines and Mr Dallas were that:
(a)The special reason for adducing the evidence was that Mr Turkmani was a motor vehicle trader under the Motor Vehicles Sales Act 2003 and had failed to comply with the disclosure requirements of that Act, having concealed his status as a motor vehicle trader from Mr Brodie and thus from Mr Brodie’s solicitor, Mr Langford. Had Mr Langford been aware of Mr Turkmani’s status as a motor vehicle trader, he would have known of the statutory protections that applied to purchasers from such traders and his advice to Mr Brodie would have been quite different. Without disclosing what that advice was, Mr Haines asserted
that Mr Langford would have advised Mr Brodie that he could have been confident in transferring to Mr Turkmani the funds required to complete the purchase of the vehicle.
(b)The evidence about Mr Turkmani concealing his status as a motor vehicle trader could not reasonably have been produced at the hearing. It was only after the District Court judgment had been issued that
Mr Brodie had gone to Mr Langford to enquire about the advice
Mr Langford had given Mr Brodie about cancellation of the contract.
(c)The records of Mr Brodie’s mobile phone calls to Mr Turkmani were required to counter misleading evidence given by Mr Turkmani in cross examination at the District Court hearing regarding communications between Mr Brodie and Mr Turkmani prior to final cancellation of the contract.
(d)Had the trial judge known that Mr Turkmani had lied or had given misleading evidence, he may have accorded different weight to
Mr Turkmani’s evidence.
[11] Mr Rice for Mr Turkmani and Ms Eastwick-Field for Mr Lockwood, the purchaser of the vehicle following cancellation of the contract between Mr Brodie and Mr Turkmani, submitted that Mr Brodie’s application did not meet the threshold for the admission of new evidence set out in r 20.16 of the High Court Rules because:
(a) There were no special reasons for hearing the evidence.
(b)The evidence was not fresh; the fact that Mr Turkmani was a licensed motor vehicle trader was known at the District Court hearing and any matters material to that issue could have been raised at that hearing. Similarly, the records of Mr Brodie’s mobile phone calls to
Mr Turkmani could have been adduced at the hearing if Mr Brodie’s counsel had wished to do so. The answers given by Mr Turkmani in cross examination had been factually accurate and had not been misleading.
(c)The evidence was not cogent or material to the issues at the trial — which concerned the validity of Mr Turkmani’s actions in cancelling the contract and not the advice that Mr Langford might or might not have given Mr Brodie. Nor did it concern any efforts that Mr Brodie might or might not have made to contact Mr Turkmani after the date on which the contract had to be performed.
[12] Mr Rice also submitted that the application for leave to adduce this evidence suggested Mr Brodie wanted to run an entirely different case on appeal from that run before the District Court and that to admit that evidence at this stage would imperil the hearing of the appeal because, if leave were granted to adduce this new evidence, the two defendants would necessarily need an opportunity to respond to the evidence before the appeal hearing.
Discussion
[13] The submission that Mr Turkmani’s status as a motor vehicle trader was not known at the time of trial is disproved by the opening sentence of Judge Harrison’s judgment:3
[1] In February 2016 the first defendant Mr Turkmani was aged 19 and was a registered motor trader.
(Emphasis added.)
[14] Later in the judgment, the Judge specifically considered whether
Mr Turkmani’s status as a registered motor vehicle trader had any bearing on the contractual dispute. The Judge said:4
[25] I should also note at this stage that although Mr Turkmani was a registered motor vehicle dealer at the time the contract was entered into, he made the point that as a sale had not been concluded, he was not obliged to complete a sale agreement. I do not regard his registration as of any significance.
(Emphasis added.)
[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.
[16] The evidence about Mr Brodie’s phone calls to Mr Turkmani also fails to meet the requirements of r 20.16. It is clearly evidence that Mr Brodie could have called at the hearing. Even if I accept, for the sake of argument, the contention of Mr Haines and Mr Dallas that Mr Turkmani gave less than honest evidence at the hearing about his interactions with Mr Brodie, it was entirely foreseeable before the hearing that the key issue of whether the contract had been validly cancelled was likely to turn on the communications, actual and attempted, between the Mr Brodie and Mr Turkmani. Had
3 At [1]
4 At [25]
Mr Brodie’s counsel wanted to adduce evidence of Mr Brodie’s efforts to contact Mr
Turkmani after Mr Turkmani had signalled his intention to cancel the contract on 23
February 2016, there was ample opportunity to adduce that evidence, regardless of whatever Mr Turkmani might say in evidence.
[17] Lastly, I agree with Mr Rice’s submission that even if this evidence were admitted, then, “So what?” That is particularly the case with the contention that
Mr Langford would have given different advice to Mr Brodie had he known at the time that Mr Turkmani was a registered motor vehicle trader. The District Court Judge held that the contract between Mr Brodie and Mr Turkmani required payment of the balance of the purchase price and collection of the car by Monday 22 February 2016 at the latest. That was a requirement to be performed regardless of Mr Turkmani’s status, regardless of any advice from Mr Langford. It was also a requirement to be performed regardless of any efforts Mr Brodie may have made to contact Mr Brodie between 23 and 26 February 2016.
Result
[18] The application for leave is dismissed.
[19] Costs are reserved.
van Bohemen J
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