Dobbe v Taylor
[2025] NZHC 731
•3 April 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-1978
[2025] NZHC 731
BETWEEN RAYMOND HENRY DOBBE and CHD TRUSTEES (DOBBE) LIMITED
Plaintiffs
AND
DOUGLAS OWEN TAYLOR
First Defendant
DTB CONSTRUCTION LIMITED
Second DefendantGWE CONSULTING LIMITED
Third Party
Hearing: 24 February 2025
Further submissions 28 February and 6 March 2025
Appearances:
S E Russell, R F Selby for Plaintiffs
A J B Holmes, D Christoffersen, T J Powell for First and Second Defendants
D S McGill, M K Braddock, T J Lorck for Third PartyJudgment:
3 April 2025
JUDGMENT No. 2 OF WHATA J
This judgment was delivered by me on 3 April 2025 at 4.00pm,
pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors / Counsel: Russell Legal, Auckland
Meredith Connell, Auckland Duncan Cotterill, Auckland
DOBBE v TAYLOR [2025] NZHC 731 [3 April 2025]
[1] The plaintiffs sued the defendants for designing and building a defective yard. The plaintiffs said they agreed to build a yard that could carry a 36 tonne fork hoist, or as a “second backdoor” alternative claim, that the design and build of the yard was inherently defective such that the yard was always going to fail irrespective of the use of a 36 tonne fork hoist. I found for them on the latter claim but as no evidence had been filed on specifically identifying or quantifying loss relating to this claim. I concluded that the defendants (DTB Construction Limited (DTB) and Mr Taylor) must have the opportunity to be heard on whether the plaintiffs should be allowed to adduce further evidence specifically relating to the type and quantum of losses arising from the proven breaches. This is my judgment on whether leave should be granted to the plaintiffs to now file that evidence.
Background
[2]As set out in the first judgment:1
[1] In 2016, the EMW Trust (the Trust) contracted with DTB Construction Limited (DTB) to build a warehouse and yard at Jomac Place (the Contract). Mr Taylor and his wife are the only directors of DTB. The Trust has two trustees: Mr Dobbe himself and CHD Trustees (Dobbe) Limited, a company which Mr Dobbe is the sole director of. Mr Dobbe claims, in short, that DTB agreed to design and build him a yard that could take the weight of a fork hoist that could stack containers up to five high. DTB did not do this. Shortly after it was built, the yard failed badly.
[2] The plaintiffs, Mr Dobbe and CHD Trustees (Dobbe) Ltd now sue Mr Taylor and DTB for the costs of repairing the yard. DTB deny any liability. It says DTB built what Mr Dobbe specifically instructed it to build. Mr Taylor also says he is not personally liable for DTB’s work. However, if they are liable, DTB and Mr Taylor also sue GWE Consulting Limited (GWE) the engineering firm that gave them design advice about the yard and associated drainage.
[3] The latest pleading alleged six causes of action. However, at the end of the hearing only two main causes were still pursued: breach of contract by DTB and negligent breach of a duty of care by Mr Taylor. The main claim is that DTB, under Mr Taylor’s personal control, agreed but failed to build a yard fit for Mr Dobbe’s specific requirements or failed to exercise reasonable skill and care in the design and build process. GWE is sued by DTB and Mr Taylor for negligent advice in the event that DTB is found liable. DTB and Mr Taylor deny they agreed at any time to build a yard to meet the alleged requirements. GWE say they had no direct relationship with Mr Dobbe and they did exactly what they were asked to do by DTB and Mr Taylor.
1 Dobbe v Taylor [2024] NZHC 3657.
Issues
[4] While the parties diverge sharply as to the proper framework of assessment, with the benefit of the evidence and argument, there are five primary issues going to the question of liability:
(a)Whether DTB agreed and failed to build a yard that could carry a 36 tonne fork hoist (issue one).
(b)Whether DTB materially breached the terms of the Contract (issue two).
(c)Whether Mr Taylor owed and breached a duty of care to the Trust (issue three).
(d)Whether any proven failure or breach caused material loss (issue four).
(e)Whether any proven failure or breach and corresponding loss was adequately pleaded and argued (issue five).
[5]If so, I must also then resolve the following questions:
(a)Was GWE obliged to advise and or warn DTB of the design changes needed to the drainage and the yard (issue six).
(b)What is the quantum of DTB, Mr Taylor’s or GWE’s liability, if any (issue seven).
[3] The first judgment also sets out a summary of the outcomes:
Issue one
[7] DTB never agreed to build a yard that could carry a 36 tonne fork hoist. There is little objective evidence to support an inference that an agreement of this kind was ever reached. To the extent that personal recollections are relevant, Mr Taylor’s account is more reliable than Mr Dobbe’s and is more consistent with the available documentary record and other witness accounts. However, objectively assessed, it was always agreed that the yard would be fit for the purposes of storing containers and using a fork hoist weighing at least 12.5 tonne.
Issue two
[8] DTB breached this agreement. It never discharged its contractual obligations to exercise reasonable skill care and diligence in the design of the yard and it never delivered a yard that was fit for the purpose of carrying a
12.5 tonne fork hoist or was otherwise free from defects. It could never have been sure the designed used was fit for that purpose.
Issue three
[9] Mr Taylor breached a duty of care to the Trust. A director of a company may be liable in negligence if it can be shown they had control over
the relevant careless conduct. Mr Taylor clearly had personal control over the design and build process and failed to properly supervise that process so that he could be sure the yard was in fact fit for purpose. As one expert put it, the design chosen by him was “Frankenstein’s Monster.”
Issue four
[10] The claim for losses caused by the 36 tonne fork hoist must fail. However, as the yard would have failed irrespective of the use of the 36 tonne fork hoist, DTB is prima facie liable in contract to put the plaintiffs in the position they would have been in had the contract been performed, and Mr Taylor is liable to the extent necessary to put the plaintiffs in the position they would have been in had the negligence not occurred.
Issue five
[11] The agreement to build a yard fit for the purpose of carrying a 12.5 tonne fork hoist was not clearly pleaded. Nevertheless, save as to issues as to quantum of loss, I find this claim was sufficiently foreshadowed in the pleadings, evidence and then addressed at trial. In reality, DTB and Mr Taylor’s “universe” was premised on a commitment to build a yard that could accommodate a 12.5 tonne fork hoist.
Issue six
[12] I find there is no basis for finding GWE liable for any reason. It did what it was asked to do, competently.
Issue seven
[13] As foreshadowed, there is a problem with lack of pleading, evidence and argument as to the quantum of loss for the proven contractual and tortious breaches. As a matter of procedural fairness, the parties must be heard on this.
[4] It is helpful to also set out my findings in relation to Issue five dealing with pleadings and fairness issues:
[184] I now address the issue of whether any proven failure or breach and corresponding loss was adequately pleaded and argued. The Sixth Amended Statement of Claim is very detailed with extensive and at times complicated particularisation. Nevertheless, the clear and central theme of the pleadings, mirrored in evidence and argument, is an alleged failure by DTB and Mr Taylor to design and build for Mr Dobbe’s Requirements, especially the requirement for a 36-tonne fork hoist. Accordingly, the direct evidence relating to whether the yard could carry a 12.5 tonne fork hoist was sparse and Mr Russell in closing noted, as I have said, the 12.5 tonne theory was a “second backdoor” alternative claim.
[185] It is also clear that DTB and Mr Taylor’s case has been directed to this theme. Their cases have been directed to the alleged “Requirements”. They have not sought to adduce evidence to show that the yard in fact built could accommodate a 12.5 tonne fork hoist or the cost of repair required to build a yard for that specific purpose. And, they have not addressed a claim
to losses based on the proven breaches. In closing oral argument, I pressed Mr Holmes on the potential for liability arising from the poor design (irrespective of the Requirements). He maintained that DTB and Mr Taylor were only required to respond to the pleaded claim and that they were not required to address a potential claim based on a flawed design and build only.
[186] An issue therefore arises as to whether a “second backdoor” claim based solely on inherent defects irrespective of use is properly and fairly arguable. As the Court of Appeal noted in Yan v Mainzeal Property and Construction Ltd (in liq):2
[494] The pleading rules are not arid technicalities. They give effect to fundamental requirements of natural justice protected by s 27 of the New Zealand Bill of Rights Act 1990. The courts rightly emphasise substance over form. But ensuring that a plaintiff has a proper opportunity to present their claim, and have their day in court, cannot take precedence over a defendant's entitlement to procedural fairness including fair notice of the material elements of the claim they are required to meet. The High Court Rules 2016 in relation to pleadings are designed to strike that balance, and are flexible enough to do so in the wide range of circumstances that arise in civil trials.
(emphasis added)
[187] On careful reflection of both the pleadings and the conduct of the trial, I am satisfied, subject to the issues relating to quantification of losses, the second backdoor claim was sufficiently foreshadowed in the pleadings, addressed in the respective cases, and tested during the trial.
[188] Firstly, in terms of the pleadings, I have taken the somewhat unusual course of identifying the key pleadings at some length when addressing the issues above. As noted at [142], the claimed “Defects” were wide ranging, including design and build defects not limited to the failure to design to the Requirements. Mr Taylor’s duty of care is also widely pleaded and not limited to meeting the Requirements. This breadth of pleading is then mirrored in the first cause of action which includes, for example, claims of failure to build to the initial specification or to properly design and build in accordance with cls 5.1.3 and 5.1.4 that are not expressly tied to the Requirements. Betterment is also pleaded as a defence, and this plainly anticipates that some different form of yard was intended to be built.
[189] Secondly, in terms of the conduct of the trial, the expert evidence in chief specifically addressed the defects irrespective of “what was intended to be built” and “irrespective of the failure.” No expert evidence was offered by DTB or Mr Taylor to contradict this evidence.3 In addition, Mr Taylor’s case at trial was largely based on the assumption that he was building a yard that could stack containers two high using a 12.5 tonne fork hoist.
[190] Thirdly, Mr Holmes was also plainly alive to the full significance of this, as he cross examined the independent experts on whether their concerns were limited to use of a 36-tonne fork hoist and did not extend to the use of a
12.5 tonne fork hoist. He was wise to do so, because, as noted, the expert
2 Yan v Mainzeal Property Construction Ltd (in liq) [2021] NZCA 99, [2021] 3 NZLR 598.
3 Mr Holmes advised that expert evidence was not adduced for cost reasons.
evidence for the plaintiffs and GWE identified inherent defects in the design irrespective of such use. The key point for present purposes is that the potential significance of the defects in terms of use of a 12.5 tonne fork hoist were explored in the trial.
[191] There is however an issue as to the specific identification and quantification of losses. There is no evidence specifically addressing those matters. As this was not canvassed at the trial, I have resolved to afford DTB and Mr Taylor the opportunity to submit on whether the plaintiffs should be given the opportunity to provide that evidence, and if so, its scope.
Outcome on issue five
[192] Save as to issues of quantification of loss, the second backdoor claim was sufficiently foreshadowed in the pleadings, addressed in the respective cases, and tested during the trial. In terms of quantification, however, there is a need for further argument and if appropriate further evidence.
Threshold
[5] Section 98 of the Evidence Act 2006 (the Act) deals with the admission of evidence after the close of a party’s case. It states:
98 Further evidence after closure of case
(1)In any proceeding, a party may not offer further evidence after closing that party’s case, except with the permission of the Judge.
(2)In a civil proceeding, the Judge may not grant permission under subsection (1) if any unfairness caused to any other party by the granting of permission cannot be remedied by an adjournment or an award of costs, or both.
…
(5) The Judge may grant permission under subsection (1), —
…
(b)in any other proceeding, at any time until judgment is delivered.
[6] Neither counsel submitted that s 98(5)(b) precluded the admission of further evidence in this case. In any event, I approach that issue on the basis that the first judgment was not a final judgment delivered given that no final orders had been made.4
4 See Montego Motors Ltd v Horn [1974] 2 NZLR 21 (SC) at 25.
The threshold test must be considered in light of the purpose of the Act as set out in s 6 most relevantly:
6 Purpose
The purpose of this Act is to help secure the just determination of proceedings by—
(a)providing for facts to be established by the application of logical rules; and
(b)providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(c)promoting fairness to parties and witnesses; and
…
(e) avoiding unjustifiable expense and delay; …
[7] The authors of Mahoney on Evidence appear to lean to the view that in most civil trials and barring irremediable unfairness to the other parties, a judge should permit a party to call further evidence under s 98(2).5 But as the authors also note, judges have still sought to impose some version of the common law’s more restrictive attitude towards permitting a party to offer evidence after the close of its case, relying on s 6 factors.6 That attitude is said to be reflected in principles stated by Smellie J in Equiticorp Industries Group Ltd (In Statutory Management) v Hawkins and earlier by Tipping J in Savill v Chase Holdings (Wellington) Ltd.7 Smellie J identified the following principles:
(a)The discretion should be exercised sparingly once the cases on both sides have closed and leave should only be given in exceptional cases.
5 Scott Optican and Elisabeth McDonald (eds) Mahoney on Evidence: Act and Analysis (2nd ed, Thomson Reuters New Zealand Ltd, Wellington, 2024) at 874–876; citing Law Commission Evidence. Volume 1: Reform of the Law (NZLC R55, 1999) and Maranathan Charitable Trust v Cawthray Motors Ltd [2016] NZHC 1069 at [12]–[15]. I note that the Law Commission at [432] of its report agreed with the general prohibition on a party offering further evidence after the close of its case.
6 At 875.
7 See Equiticorp Industries Group Ltd (In Statutory Management) v Hawkins [1996] 2 NZLR 82 HC at 85; and Savill v Chase Holdings (Wellington) Ltd [1989] 1 NZLR 257 at 291–292. See also Jackson v Te Rangi [2014] NZHC 2918, [2015] 2 NZLR 351 at [112]; Lindsay v Noble Investments Limited [2014] NZHC 799 at [122]; and Bishop Industries (Wellington) Ltd v Construction Labour Hire Ltd [2016] NZHC 2848 at [28].
(b) Only if the failure to call evidence at the proper time is adequately explained should the discretion be exercised.
(c)The justice of the case must require the admission of the additional evidence.
(d)Leave will be refused if the evidence would have been available had due diligence been exercised.
(e)If the party is taken by surprise, leave will be more readily granted.
(f)The distinction between failure to tender evidence and election not to can be important.
[8]And Tipping J said this:8
There is no doubt that the Court has power to allow further evidence to be called by a party even after judgment has been reserved — see Montego Motors Ltd v Horn [1974] 2 NZLR 21 and Eatson v Cramp Developments Ltd [1975] 1 NZLR 641. The Court’s power in this respect is one which should be exercised sparingly and only in compelling circumstances.
A party’s primary duty is to present to the Court all supporting evidence at the trial. Any unwarranted relaxation of that duty is not conducive to the efficient and just disposal of litigation. It would be unwise to attempt to lay down exhaustive guidelines as to when further evidence may be called after a party has closed his case and more importantly for present purposes, after the conclusion of the trial and the Judge has reserved his decision. The interests of justice must always be paramount but I think it will usually be helpful to consider the matter under three headings which will frequently be interlinked, together with any other features of the individual case which bear on the exercise of the Court’s discretion. These three headings are:
1.The Court should consider whether the new evidence could with reasonable diligence have been adduced at the trial or whether the party seeking to adduce the further evidence has shown on a reasonable basis that he did not earlier appreciate its significance — this latter ground being that upon which Wilson J allowed the further evidence to be called in Eatson’s case.
8 Savill, above n 7, at 291–292. See also discussion in Mahoney, above n 5, at 876; Philip Moore & Co Ltd v Surridge [2018] NZHC 172 at [15]; and Antons Trawling Ltd v Dawson & Associates Ltd [2016] NZHC 980 at [10]–[21].
2.The Court should consider whether the new evidence is such as will either (a) be conclusive of the case; or (b) at least be likely to have a substantial bearing on a central issue.
3.The Court should consider from the nature of the new evidence sought to be adduced how credible and reliable it is likely to be.
The interlinked nature of these points can be demonstrated by postulating a case, unlikely as it may be, where some new evidence is put forward which would have a decisive effect. Even if such new evidence could have been adduced with reasonable diligence the interests of justice might nevertheless require it to be heard subject to an appropriate sanction in costs.
[9] For my part, these statements of principle continue to provide touchstones for the key evaluation in s 98(2). They go to what is usually considered fair and just in civil proceedings.
[10] Overall, and to borrow the reasoning of the Court of Appeal in Yan relating to pleadings,9 a party must have a proper opportunity to present their case, but that cannot override the other party’s entitlement to procedural fairness, including clear notice of what they must prove or disprove at trial and to present their case accordingly.
Key arguments
[11] Unsurprisingly, the arguments for the parties essentially present two sides of the same coin. Mr Russell is adamant that it is both fair and just for Mr Dobbe to prove quantum. The defendants accepted that they were obliged to build a yard that could accommodate a 12.5 tonne fork hoist but never did, and they adduced no expert evidence whatsoever going to either liability or quantum. He says the new evidence will be relatively confined going only to the cost of repair to achieve the agreed standard and to return the site to a pristine state. He also says that the plaintiffs tailored their case at trial for efficiency reasons, while still leaving open the “second backdoor” claim.
[12] In further submissions after the hearing Mr Russell identified a number of cases where issues as to quantum were resolved separately after an initial trial.10 Particular
9 Yan v Mainzeal Property and Construction Ltd (in liq), above n 2, at [494].
10 Including Intech Inc v Anura Ltd (formerly named Orion Marine Ltd) [2024] NZHC 355; Cayman Spectrum (NZ) Co v Spark New Zealand Trading Ltd [2024] NZHC 107; Smartpay Ltd v Kumar
reliance was placed on the observations in Burden where the High Court, in permitting a fresh proceeding, emphasised the importance of the right of access to justice.11 The Court there noted:12
It would be draconian to prevent the [plaintiffs] from pursuing a claim for primary infringement merely on the basis that they failed to seek leave to amend their pleadings in the 2014 proceedings to add a claim of primary infringement.
[13] On the other hand, Mr Holmes emphasised that this case falls well short of justifying leave. It is not exceptional; it is a very belated post judgment attempt at a split trial. Allowing further evidence to be adduced would irremediably prejudice the defendants since they shaped their case by reference to the plaintiffs’ case on liability at trial. As Casey J put it in Savill v Chase Holdings (Wellington) Ltd:13
…there could well be an injustice to [the defendant] in allowing [fresh argument] to be put forward at this late stage and decided on evidence which was directed at other targets, in a case shaped to meet a different pleading.
Mr Holmes thus submits it would be manifestly unfair for the defendant to now have to effectively meet a different case based on new evidence. Given the total absence of expert evidence identifying or quantifying the loss, the Court was never in a position to award damages. The proposed evidence is not clarificatory evidence, and no explanation has been given as to why the plaintiffs produced no evidence as to quantum of loss. Given the nature of the “second backdoor” claim, the nature of the proposed evidence is complex, especially given the evaporative effect of the use of the 36 tonne fork hoist.
[14] Responding to the plaintiffs’ supplementary submissions, Mr Holmes submits that the further case law cited conflates an idiosyncratic copyright jurisdiction,14 with applications for split trials or cases where orders for split trials had been made,15 the
[2022] NZHC 997, [2022] NZCCLR 29; Smartpay Ltd v Kumar [2022] NZHC 2685; Mike Pero
Mortgages Ltd v Pero [2016] NZHC 3185; Mike Pero Mortgages Ltd v Pero [2017] NZHC 2486; Lewis Holdings Ltd v Steel & Tube Holdings Ltd [2014] NZHC 3311, [2015] 2 NZLR 831; and Lewis Holdings Ltd v Steel & Tube Holdings Ltd [2015] NZHC 2189.
11 Burden v ESR Group (NZ) Ltd [2019] NZHC 1546 at [72].
12 At [71].
13 Savill, above n 7, at [316].
14 Burden, above n 11; and Intech, above n 10.
15 Cayman Spectrum, above n 10; Smartpay Ltd, above n 10; Mike Pero Mortgages Ltd, above n 10; and Marchand v Jackson [2013] NZHC 1752.
supervisory and inquisitorial jurisdiction of the High Court,16 and cases where further evidence was adduced for clarificatory or calculation purposes.17
Assessment
[15] This has been a challenging case. The plaintiffs proved that the yard built for them by the defendants was always going to fail. Justice ordinarily demands they be made good for this. But they did not adduce expert evidence specifically identifying or quantifying their corresponding losses at trial, they say for trial efficiency reasons. Only fact based evidence of the actual costs of repair was produced. The defendants say they met the plaintiffs’ case at trial and it is now too late for the plaintiffs to identify and quantify their loss—to effectively have a second trial.
[16] The key issue is fairness. Should the plaintiffs be made good? Should the defendants have to reshape their case in light of new evidence? Both these questions bring into focus the integrity and efficacy of the judicial system to provide fair access to justice. Rules of pleading, evidence and case management are designed to secure this fundamental goal. Litigation advice, strategies and resourcing are based on them. For reasons set out in the first judgment, the pleading and the evidence was sufficient to fairly establish liability but there was no expert evidence going to the specific identification and quantum of loss. This total absence of probative expert evidence going to an element of the claim is not adequately explained. Efficiency at trial is to be commended (and was encouraged by me), but that does not explain the total absence of expert evidence that with reasonable diligence could have been adduced prior to trial. A split trial was never foreshadowed and the plaintiffs were not taken by surprise. The defendants can fairly say they shaped their case to meet the plaintiffs’ evidence, including the total absence of expert evidence going to the identification and quantum of loss.18
16 Lewis Holding Ltd, above n 10.
17 See Dunes Cafe and Bar Ltd v 623 Rocks Road Ltd (in liq) HC Nelson CIV-2006-442-000481, 31 March 2010; and Body Corporate 366567 v Auckland Council [2024] NZHC 32 [The Gore Street Apartments also known as “Harbour Oaks”].
18 However, I do not accept to Mr Holmes’ complaint that had the defendants been confronted with this evidence at trial they may well have met the “second backdoor” claim more directly. I was told at the hearing that they did not produce any expert evidence as to liability or quantum for costs reasons.
[17] The added difficulty here is that the evidence proposed to prove full cost of cure is substantive rather than clarificatory or a refinement of already exchanged expert evidence. None of the authorities cited to me envisaged a directly comparable exercise or scale of evidence save in cases of split trial.19
[18] It follows that there will be unfairness to the defendants if further expert evidence as to identification and quantification of loss is allowed post-trial. Can this be adequately mitigated by ways of adjournment and costs orders? I have come to the view that it cannot. The unfairness here goes to the integrity of the civil process and the building blocks of the defence case. To allow the evidence now is to dismantle those blocks post-trial.
[19] Lastly, I do not consider that the present case is comparable with the facts in Burden where ultimately the plaintiff in a copyright case involving a split trial was allowed to amend its statement of claim to permit a new issue of liability to be pleaded at the quantum stage.20 This case reflects the approach taken in copyright cases. As the Court of Appeal said in that case:21
… in appropriate cases the Court may permit a new issue of liability to be raised at a quantum hearing. That reality is reflected in the High Court Rules relating to patents which allow the grant of leave to adduce evidence relating to matters not specified in particulars and to amend particulars of infringement, the latter on terms which the Court considers just.
(footnotes omitted)
Significantly, in that case there was also no need for further evidence on a key issue.22
[20] Therefore, with some real reluctance, I have come to the view that allowing further evidence going to identification and quantum of loss would be unfair to the defendants and impermissible in terms of s 98(2) of the Evidence Act 2006.
19 For completeness I refer to my decision in Body Corporate 160361 v BC 2004 Ltd [2015] NZHC 1803 cited by Mr Russell. In that case I permitted further evidence as to quantum after finding liability. But in that case relevant expert evidence identifying the appropriate framework for quantum had been adduced at trial. Any further evidence of loss had to be assessed within that framework at [269]. I also acknowledge that substantive evidence was required and permitted in Montego Motors Ltd v Horn, above n 4, but the scale, extent and complexity of the evidence to be adduced was markedly different, dealing only with diminution in value of a car with a faulty transmission.
20 Burden v ESR Group (NZ) Ltd [2020] NZCA 560.
21 Above n 20, at [32].
22 Above n 20, at [45]–[47].
Outcome
[21] I decline to allow the plaintiffs leave to file further evidence on the issue of quantum of their losses in respect of their “second backdoor” claim. What does this mean then for the result? I have found for the plaintiffs on liability. There can be no serious dispute that they suffered at least some loss. I am not yet satisfied that in the absence of further evidence only nominal damages may be awarded. As Cooke J (as he then was) said in Montego Motors Ltd, “it is well known that mere difficulty in assessing damages does not preclude an assessment.”23 It would be manifestly unjust to not afford the plaintiffs the opportunity to advance by way of argument a claim to loss based on the evidence as it stands. In this regard, Mr Russell cannot be criticised for focusing argument on the primary claim at trial. Also, for reasons explained in the first judgment, the defendants are not being asked to reshape their case to a different pleading. Rather, the building blocks of their case, like the plaintiffs, must now stand or fall on the evidence given at trial. A case management conference will be convened for that purpose.
Costs
[22] While I invited argument on whether further evidence should be allowed, the defendants are entitled to their costs on this aspect on a 2B basis together with disbursements.
Whata J
23 Above n 4, at 25.
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