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Cowan v Martin

Cowan v Martin

Case [2014] NZCA 593 4 December 2014

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA418/2013
[2014] NZCA 593

BETWEEN	JEFFREY PETER COWAN AND PRUDENCE JANE COWAN Appellants
AND	JULIA MARTIN AND STEPHEN FARRELL Respondents

Hearing:	9 September 2014
Court:	French, Winkelmann and Asher JJ
Counsel:	M T Davies and S R Jacobs for Appellants J E M Lethbridge and T J P Gavigan for Respondents
Judgment:	4 December 2014 at 11.00 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe respondents are to file an amended statement of claim in accordance with this judgment within 15 working days.
CThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Mr and Mrs Cowan (the Cowans) appeal a decision of Associate Judge Sargisson made in the High Court at Auckland.[1]
[1]Martin v Cowan [2013] NZHC 1274.
In the decision, the Associate Judge declined the Cowans’ application for a defendant’s summary judgment.
The appeal raises the following issues:
(a)Were the proceedings issued in the wrong name or the wrong capacity?
(b)Is any error in the statement of claim capable of being cured by amendment to avoid summary judgment?

Background

The Cowans owned a residential property in Mt Eden, Auckland.
On 26 October 2005 they entered into a written agreement to sell the property. The contract showed the purchasers as “Julia Martin and Stephen Farrell” (Martin and Farrell). It did not say “or nominee”.
Prior to settlement, solicitors acting for Martin and Farrell advised the Cowans’ solicitors that their clients had formed a trust to complete the purchase. The letter, dated 22 November 2005, enclosed a transfer document showing the purchasers as “Stephanie Diana Martin and Colleen Clare Ciobo”. Mesdames Martin and Ciobo were the trustees of the newly formed trust, under which Martin and Farrell were discretionary beneficiaries. The trust was called the Slan Abhaile Family Trust (the family trust).
The sale was duly settled on 25 November 2005 and the Mt Eden property was transferred into the names of Stephanie Diana Martin and Colleen Clare Ciobo. The transfer was registered on 2 December 2005.
In October 2007, Stephanie Martin resigned as trustee and was replaced by a Dr Malcolm Sturm. The property was then transferred into the names of Dr Sturm and Ms Ciobo.
On 27 October 2011, Martin and Farrell issued proceedings in the High Court against the Cowans. The statement of claim alleges that in breach of an express warranty under the agreement for sale and purchase, the Cowans carried out certain defective building work during their period of ownership, causing Martin and Farrell loss or damage in the sum of $225,000.
The loss or damage is particularised as follows:
(a)$15,000 expended to make good unsafe electrical work;
(b)diminution in the value of the land as a result of an unlawful carport, estimated at $60,000; and
(c)remedial works to the rear of the property estimated to cost $150,000.
The Cowans filed a statement of defence denying the allegations and also pleading that any claim was statute-barred…

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 Cowan v Martin

Details

AGLC: Cowan v Martin [2014] NZCA 593
Case: [2014] NZCA 593
Decision Date: 4 December 2014 at 11.00 am

CaseChat Overview and Summary

The Cowans appealed against a decision of the Associate Judge who declined their application for a defendant’s summary judgment. The Cowans submitted that the proceedings had been issued in the wrong name and/or the wrong capacity. The appeal raises the following issues:(a)Were the proceedings issued in the wrong name or the wrong capacity?(b)Is any error in the statement of claim capable of being cured by amendment to avoid summary judgment?The Court found that the proceedings were not issued in the correct capacity. It was common ground that Martin and Farrell did not own the property at the time they issued the proceedings. The trustees owned the property and Martin and Farrell were merely discretionary beneficiaries. Martin and Farrell could not have issued the proceedings as trustees because there was no evidence they were appointed as trustees prior to the claim being filed. The Court also found that it was arguable that Martin and Farrell issued the proceedings as agents for the trustees or in a representative capacity. The Court held that the misdescription in the statement of claim was a misnomer rather than a misidentification and therefore an amendment would not be prejudicial. The appeal was dismissed and Martin and Farrell were to file an amended statement of claim consistent with these reasons within 15 working days of the date of this judgment. There was no order as to costs.

Orders