Dyas v Saini - [2014] NZHC 509

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-2027 [2014] NZHC 509

UNDER the District Courts Act 1947

IN THE MATTER of an appeal against a decision of the
District Court at Auckland

BETWEEN CAROLE ANN D YAS Appellant

ANDMANISHA SAINI and JEAN-PHILIPPE DIEL as trustees of the VALENCE FAMILY TRUST
Respondents

Hearing: 28 February 2014

Appearances: DJG Cox for the Appellant
P Wright for the Respondents

Judgment: 19 March 2014

JUDGMENT OF WOODHOUSE J (Application for leave to appeal, stay and costs)

This judgment was delivered by me on 19 March 2014 at 4:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar
……………………………………

Solicitors / Counsel:
Mr DJG Cox, Rennie Cox, Solicitors, Auckland
Mr P Wright, Barrister, Shortland Chambers, Auckland
Mr A Kashyap (respondents’ instructing solicitor), Solicitor, Auckland

DYAS v SAINI and DIEL [2014] NZHC 509 [19 March 2014]

[1] The respondents have applied for leave to appeal against my judgment of 10

October 20131 and sought stay of execution of an order for costs. There is also an issue as to the quantum of costs.

The judgment under appeal

[2] For convenience I will reproduce some of the introductory paragraphs in the substantive judgment to provide background:

[2] Two issues arise on the appeal. One is whether the breach of fiduciary duty by the appellant on the night of the auction was causative of loss to the respondents arising out of the sale to Ms Pepper. The second is whether the appellant was bound by a statutory obligation under s 63(3) of the Real Estate Agents Act 1976 (the Act) to repay commission to the respondents.

…

[5] This proceeding was commenced by the respondents against the appellant in 2010. Judgment was given in March 2013 in favour of the respondents on two claims.2

[6] The first claim was for breach of fiduciary duty in that the appellant failed to disclose to the respondents at the auction that Ms Pepper was a real estate agent employed by Realty and failed to advise the respondents at the auction of their statutory rights under ss 63 and 64. There was judgment against the appellant for $22,000 being the difference between the market value of the respondents’ property at the date of the agreement and the agreed sale price.

[7] The second claim was pursuant to s 63(3) for recovery of the commission paid by the respondents to Realty. Judgment was given against the appellant for the total commission; a sum of $18,292.50.

[8] The causation issue relating to breach of fiduciary duties arises in the following circumstances. After the agreement for sale and purchase was entered into, but before settlement, the respondents were advised that the purchaser was an associated agent and that they had the right under s 63(3) of the Act to avoid the contract. Also before settlement the respondents received from Realty a valuation of the property in purported compliance with one of the obligations under s 64 of the Act.…

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 Dyas v Saini

Details

AGLC: Dyas v Saini [2014] NZHC 509
Case: [2014] NZHC 509
Decision Date: 19 March 2014

CaseChat Overview and Summary

The respondents sought leave to appeal against a High Court judgment in their favour on two claims against the appellant. One claim was for breach of fiduciary duty and the other was pursuant to s 63(3) of the Real Estate Agents Act 1976 for recovery of the commission paid by the respondents to Realty. The Judge was satisfied that the appeal should be allowed and judgment on both claims against the appellant should be set aside. The principal reason for concluding that the appellant was not liable for breach of fiduciary duty was that, although there was breach of a duty of disclosure at the auction, this breach was not material to the loss claimed by the respondents. There could not be liability for breach of fiduciary duty unless the breach was material to the loss that was claimed. The essence of the Judge's reason for concluding that the appellant had no liability to repay the commission was that, as a matter of statutory interpretation, s 63(3) imposed an obligation to repay the commission only on the real estate agent appointed by the vendor as the real estate agent. The application for leave to appeal was declined. The Judge made an order for stay of enforcement of the award of costs in favour of the appellant, on condition that the respondents pay the total sum of the costs judgment into their solicitor’s trust account. The appellant sought costs on a 2B basis with a 50% increase. The respondents did not challenge the proposed assessment of costs on a 2B basis but did challenge some specific items contained in the appellant’s schedule of costs. There was an order that the respondents pay the appellant’s costs and disbursements for the proceeding in the District Court in a sum of $19,958.50 and on the appeal in a sum of $10,248.80, a total of $29,847.30.

Orders