English v Foley - [2023] NZHC 84

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2022-425-40

[2023] NZHC 84

IN THE MATTER of a claim for breach of contract

BETWEEN

CONOR JOSEPH ENGLISH

Plaintiff

AND AND

WAYNE ANTHONY FOLEY

First Defendant

KOKO RIDGE LIMITED

Second Defendant

Hearing: 13 December 2022

Appearances:

T Mijatov and J S Trevella for Plaintiff A S Olney for Defendants

Judgment:

3 February 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(in relation to partial strike out application and further particulars)

ENGLISH v FOLEY [2023] NZHC 84 [3 February 2023]

[1] This proceeding is borne out of a proceeding initiated in 2018 between the same parties which settled in 2019. Two issues arise in this application by the defendants to strike out part of the statement of claim.

[2] The first issue is whether the full and final settlement of the 2018 proceeding is fatal to aspects of the present proceeding. The second issue is whether Mr English’s claim for damages on a restitutionary basis is tenable. Mr English was the plaintiff in the 2018 proceedings with Mr Foley and Koko Ridge Limited (Koko), then known as Ladies Mile Property Limited, the defendants. Mr Foley and Koko also apply for particulars of one aspect of Mr English’s claim which I address after their strike out application.

What was in issue in the 2018 proceeding?

[3] The following brief summary of the 2018 proceeding is paraphrased from my April 2019 judgment declining Mr Foley and Koko’s application for summary judgment as defendants.1

[4] Mr Foley was the successful tenderer in relation to a development block of land known as at Ladies Mile in Queenstown. The issue in the 2018 proceeding was whether Mr Foley had submitted the tender on behalf of himself, on behalf of Mr English alone, or jointly on behalf of himself and Mr English. Koko was incorporated to complete the purchase of the land after Mr Foley’s tender was accepted. Mr English sought a variety of orders in the 2018 proceeding including a declaration Koko held the Ladies Mile land on trust for him or, an account of profits from the development or damages.

[5] The April 2019 judgment sets out the history of how Mr Foley and Mr English, who were previously unknown to each other, were brought together through a mutual connection with a third party.

[6] Later in 2019, the parties attended mediation and completed a settlement agreement dated 29 November 2019 (the settlement agreement).

1 English v Foley [2019] NZHC 928.

The 2018 proceedings settled

[7] The settlement agreement, in its background, refers to the dispute between the parties over the purchase and development of the land at Ladies Mile. It notes that Mr English had lodged a caveat against the land (which he lifted to allow Koko to settle its purchase).

[8] Under the settlement agreement, Mr Foley had to pay Mr English $200,000 including GST, if any. Koko was to give Mr English…

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: [2023] NZHC 84
Decision Date: 3 February 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Conor Joseph English initiated a claim against Wayne Anthony Foley and Koko Ridge Limited for breach of contract. This case stems from a prior proceeding in 2018, which was settled in 2019. The defendants now seek to strike out parts of Mr English's statement of claim and request further particulars. The primary issues are whether the full and final settlement of the 2018 proceeding precludes aspects of the current proceeding and whether Mr English's claim for damages on a restitutionary basis is valid. Associate Judge Lester ruled that Mr English's claim for restitutionary damages is untenable as he cannot claim to have lost the benefit of the settlement agreement while simultaneously maintaining it is in force. Furthermore, the full and final settlement of the 2018 proceeding bars the loss of opportunity claim. The court granted the defendants' application for a partial strike out and ordered Mr English to re-plead his statement of claim to separately address the breaches against each defendant. Additionally, the court ruled that no further particulars need to be provided in respect of the non-pecuniary loss claimed by Mr English. The defendants were awarded costs on a 2B basis as they were successful in their applications.

Orders