Brodie v Turkmani - [2017] NZHC 2720

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 Respondent

M 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…

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 2720
Case: [2017] NZHC 2720
Decision Date: 7 November 2017

CaseChat Overview and Summary

Bernard Brodie sought leave to adduce further evidence in the hearing of his appeal against a District Court decision that the contract for the sale of a classic car to him by Bassam Turkmani had been validly cancelled. The application for leave to adduce further evidence was declined by the court. The appellant sought to adduce an affidavit from his solicitor, John Langford, asserting that the solicitor would have advised the appellant differently had he known the respondent was a registered motor vehicle trader, and a fourth affidavit from the appellant himself, asserting that records of his telephone calls to the respondent showed efforts to communicate with the respondent prior to the cancellation of the contract. The court found that the evidence sought to be adduced did not meet the requirements of r 20.16 of the High Court Rules, as the evidence was neither fresh nor cogent or material to the issues at the trial. The court also found that the appellant had failed to raise the issues at the District Court hearing, and thus could not now rely on them as a special reason for the admission of the evidence. The application for leave was dismissed and costs were reserved.

Orders