Duval v Clift - [2014] NZHC 1950

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-0059

CIV-2012-404-0120 [2014] NZHC 1950

BETWEEN
BILL MATTHEW COWLEY DUVAL

Plaintiff

AND

JENINE LORNA CLIFT First Defendant

BRETT MAURICE BENNISON Third Defendant

Hearing: 4-7 August 2014

Counsel:

Plaintiff in person
JP Schoolz and P Jackson for Defendants

Judgment:

27 August 2014

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 27 August 2014 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Paddy Orr & Co, New Lynn schoolz@xtra.co.nz

DUVAL v CLIFT [2014] NZHC 1950 [27 August 2014]

Introduction

[1] The plaintiff and the first defendant jointly purchased a leaky home in Auckland in 2007. Ms Clift brought to the bargain savings in excess of $200,000 and creditworthiness so that she was able to raise a loan from her bank. Mr Duval brought his expertise as a leaky home consultant, and a commitment to buy out Ms Clift after two years.

[2] At the time of the purchase, Mr Duval and Ms Clift were on good terms, having a common political interest and being members of the same church, The Church of Latter Day Saints. The performance of the contract did not run smoothly and their relationship, which was based on friendship and no more at the start, rapidly deteriorated, to the knowledge of their church leaders.

[3] At the time the property was purchased there was a property sharing agreement (psa) entered into between the parties and this was renegotiated and a variation of the psa was entered into in September 2009. Both psas obliged Mr Duval to purchase Ms Clift’s share of the property. This has not happened.

[4] In these proceedings there are now claims based on several causes of action by Mr Duval against Ms Clift and a counterclaim by Ms Clift against Mr Duval.

[5] Mr Duval’s causes of action also extend to the third defendant, Mr Bennison, who became involved in this dispute in his capacity as a senior member of their church.

The claims

[6] Mr Duval’s causes of action are:

(a) Breach of contract against Ms Clift, in that she infringed upon Mr Duval’s right to exclusive possession of 10 Paris Place, Birkenhead (the property) as from September 2009. He claims
$80,000 for lost rental income; and

(b)Breach of contract against Ms Clift for stopping him repairing the property. He claims $100,000 for the anticipated additional cost of house repairs; and

(c) Breach of contract against Ms Clift for stopping him selling the property. He claims $400,000 for lost profit; and

(d)Breach of contract against Ms Clift for breaching the property agreements and seeks $25,000 for mental pain and anguish; and

(e) Harassment for Ms Clift’s unwanted and untoward contact with him

for which he seeks $50,000 for mental pain and anguish; and

(f) Breach of privacy against Ms Clift for which he seeks $50,000 for mental pain and anguish; and

(g)Physical and psychological violence against Ms Clift for which he seeks $50,000…

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 Duval v Clift

Details

AGLC: Duval v Clift [2014] NZHC 1950
Case: [2014] NZHC 1950
Decision Date: 27 August 2014

CaseChat Overview and Summary

Duval and Clift jointly purchased a property in 2007. There were subsequent agreements to vary the original purchase agreement. Duval brought claims against Clift and Bennison for breach of contract, harassment, breach of privacy, defamation, and physical and psychological violence. Clift counterclaimed for breach of contract and other relief. Duval’s claims failed because he did not prove the alleged conduct and consequences on the balance of probabilities. There was no evidence to support the claimed damages. The counterclaim succeeded because Duval had failed to purchase Clift’s interest in the property and had failed to meet other obligations under the purchase agreement. Clift was entitled to an order for the sale of the property and other consequential orders. Costs were awarded to Clift and Bennison.

The court found that Duval's claims against Clift failed for lack of proof and lack of damages. The court found that Clift's counterclaim for breach of contract succeeded because Duval had failed to purchase Clift's interest in the property and had failed to meet other obligations under the purchase agreement. The court ordered the sale of the property and other consequential orders in favour of Clift. The court awarded costs to Clift and Bennison.

Orders