Dodds v Southern Response Earthquake Services Limited - [2019] NZHC 2741

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-009-000417

[2019] NZHC 2741

BETWEEN
KARL GREGORY DODDS AND

ALISON ROMA JACQUELINE DODDS AND ST MARTINS TRUSTEE SERVICES LIMITED AS TRUSTEES OF THE
MATTSON TRUST
Plaintiffs

AND

SOUTHERN RESPONE EARTHQUAKE SERVICES LIMITED

Defendant

Hearing: (Determined on the papers)

Counsel:

P J Woods and T D Grimwood for Plaintiffs D J Friar and NFD Moffatt for Defendant

Judgment:

25 October 2019

JUDGMENT OF GENDALL J

This judgment was delivered by me on 25 October 2019 at 3:30 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: 25 October 2019

DODDS v SOUTHERN RESPONE EARTHQUAKE SERVICES LIMITED [2019] NZHC 2741 [25 October 2019]

[1]On 16 August 2019, I issued my substantive judgment in this proceeding,

Dodds & Ors v Southern Response Earthquake Services Ltd (the judgment).1

[2] On 28 August 2019, counsel for the plaintiffs in this matter filed a memorandum seeking that the judgment be “corrected” to amend what he says is an error in the calculation of the damages awarded. That request was made under r 11.10 High Court Rules, which provides:

11.10 Correction of accidental slip or omission

(1)A judgment or order may be corrected by the court or the Registrar who made it, if it—
(a)contains a clerical mistake or an error arising from an accidental slip or omission, whether or not made by an officer of the court; or
(b)is drawn up so that it does not express what was decided and intended.

(2)The correction may be made by the court or the Registrar, as the case may be,—

(a)on its or his or her own initiative; or

(b)on an interlocutory application.

[3] The plaintiff submits that there was an error in the final damages awarded as the judgment indicated this amount was to be GST exclusive, when what the plaintiffs claimed and were entitled to was the GST inclusive amount.

Counsel quotes from the judgment at para [123]:

[123]I am satisfied that the Dodds have established that they have suffered a loss in that they have not received the full value of their promised benefit under the contractual settlement. A shortfall on this full entitlement occurred, representing the difference between:

(a)The $894,937 upon which the Settlement Agreement was premised, and

(b)Southern Response’s actual estimate of “the amount it would have cost us to rebuild your house on its present site.”

1 Dodds & Ors v Southern Response Earthquake Services Ltd [2019] NZHC 2016.

[5] Precise calculation of the quantum of damages was addressed later in this judgment at [204] to [207] as follows:

(a)I have found that Southern Response wrongly represented the total cost of rebuilding the Dodds’ house initially at $895,937.78 (and then revised to $894,937.00) and wrongly represented that it was settling at this total rebuilding estimate figure of $894,937.00. Accordingly, the Dodds are entitled to what was the true reasonable estimate at the time of the amount Southern Response would have…

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.

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Details

Case: [2019] NZHC 2741
Decision Date: 25 October 2019

CaseChat Overview and Summary

The case of Dodds v Southern Response Earthquake Services Limited was heard in the High Court of New Zealand. The plaintiffs, Karl Gregory Dodds, Alison Roma Jacqueline Dodds, and St Martins Trustee Services Limited as trustees of The Mattson Trust, sought to amend the judgment to include GST in the damages awarded to them. The defendant, Southern Response Earthquake Services Limited, opposed the amendment, arguing that the damages should remain GST exclusive and that the appropriate treatment is for the judgment to remain GST neutral.

The central legal issue was whether the damages awarded should include GST. The plaintiffs argued that the damages should be GST inclusive, as they had settled for a figure they believed was based on a proper building assessment report plus GST. The defendant contended that damages for misrepresentation are intended to compensate for losses and are not the supply of goods and services under the Goods and Services Tax Act 1985. The court considered the arguments and concluded that the damages awarded should include GST, as the loss suffered stemmed from the plaintiffs settling for a figure they thought was based entirely on a proper building assessment report plus GST.

The court ordered that "plus GST" be added to the references to the judgment sum of $178,894.30, and that Southern Response pay the plaintiffs interest on this sum from 23 December 2013 until the final date of payment. This decision was based on the fact that the damages awarded represented the difference between the $894,937 upon which the Settlement Agreement was premised, and Southern Response's actual estimate of the amount it would have cost to rebuild the Dodds' house on its present site, which included GST. The court found that it was appropriate for the Dodds to be awarded GST, as the loss suffered in the present case stemmed from Southern Response misrepresenting the Abridged DRA, which was made up of costs to build a house, which included GST.

Orders