BThe findings by the Judge in relation to question 1.3 (Cargill House) are set aside.
CThe findings by the Judge on questions 7.1, 7.2 and 7.3 (Eastbourne Street) are set aside and the issues relating to the appropriate date and amount of valuation of the remaining land are remitted to the High Court for further consideration.
DThe findings by the Judge in answer to question 7.2 (Haggart Alexander Drive) as to the date and amount of the valuation of the land are set aside and are remitted to the High Court for further consideration.

EThe respondents must pay costs to the appellant as for a standard appeal on a band A basis together with usual disbursements.

REASONS OF THE COURT

(Given by Randerson J)

Table of Contents

Para No
Introduction	[1]
First Issue: Whether there was a duty on Mr Clark to complete the Cargill House project on behalf of the partnership and whether the Judge erred in awarding damages of $250,000 in respect of that project	[8]
Cargill House – Background	[8]
Cargill House – The arguments advanced	[27]
Cargill House – Discussion	[30]
Cargill House – Conclusions	[46]
Cargill House – The appropriate remedy	[59]
Second issue: Whether there was a duty on Mr Clark to complete the Eastbourne Street development and whether the Judge erred in fixing the profit which would have thereby accrued to the partnership	[68]
Eastbourne Street – Discussion	[71]
Third issue: Whether the Judge erred in fixing the value of the Haggart Alexander Drive property on the basis of the valuation of 9 August 2007	[73]
Haggart Alexander Drive – Discussion	[77]
Conclusion	[78]

Introduction

This appeal is a further round of long-running litigation between the parties who were formerly in partnership as property developers in the Dunedin area.
It is no longer in dispute that the partnership was between the appellant Mr Clark and the first respondent Libra Developments Ltd (Libra), a company owned by a trust controlled by the second respondent Mr Hyslop. Profits and losses were to be shared equally. Mr Hyslop had operated previously as a self-employed building contractor while Mr Clark had been a building supply merchant. In general, Mr Hyslop handled the day-to-day management of building projects while Mr Clark provided or arranged finance.
The partnership commenced in 1997 and terminated on 30 October 2002. Ever since, the parties have been involved in litigation which is still not resolved. In the High Court, Chisholm J has delivered three substantive judgments[1] and this Court has issued two previous decisions.[2]
[1]Libra…

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 Clark v Libra Developments Ltd

Details

AGLC: Clark v Libra Developments Ltd [2011] NZCA 493
Case: [2011] NZCA 493
Decision Date: 28 September 2011

CaseChat Overview and Summary

This appeal, a continuation of long-running litigation between former partners Lindsay Allan Clark and Libra Developments Ltd, revolves around the calculation of partnership assets following the dissolution of their partnership. The Court of Appeal considered three primary projects: the refurbishment of Cargill House, the property development at Eastbourne Street, and the property development at Haggart Alexander Drive. The central issue was whether Clark had a duty to complete these projects post-dissolution and, if so, the appropriate remedy for any breach of duty.

Regarding Cargill House, the Court found that Clark had no obligation to complete the project as there was no contractual obligation or partnership asset under s 41 of the Partnership Act that required such action. Instead, the appropriate remedy for Clark's breach of fiduciary duty was to account to Libra for any profit derived from the partnership's business opportunity.

For the Eastbourne Street development, the Court held that Clark was not obligated to complete the project due to the absence of a contractual obligation. The Court set aside the Judge's findings on the valuation of the remaining land, remitting the matter to the High Court for reconsideration.

On the Haggart Alexander Drive property, the Court concluded that the Judge's findings on valuation were outside the scope of the issues presented. The Court set aside the Judge's findings on valuation and remitted the matter to the High Court for further consideration.

In summary, the Court allowed the appeal, setting aside certain findings and remitting specific issues to the High Court for further deliberation, while also directing that respondents pay the appellant's costs.

Orders