Ford v Ensor - [2018] NZHC 2903

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2016-443-55 [2018] NZHC 2903

BETWEEN
MARK WAYNE FORD

Plaintiff

AND

CHARLES RICHARD ENSOR Defendant

Teleconference: 7 November 2018

Counsel:

L T Meys for the Plaintiff
I D Matheson for the Defendant

Judgment:

8 November 2018

JUDGMENT OF CHURCHMAN J

Background

[1] On 13 June 2016, the plaintiff filed a statement of claim in this matter. The statement of claim referred to events which had occurred as long ago as 2008.

[2] The plaintiff alleged that he had entered into certain agreements with the defendant relating to cutting rights and trapping of animals on a large block of land owned by the defendant in rural Taranaki.

[3] The losses claimed by the plaintiff against the defendant as a result of alleged breach of contract were judgment for special damages (relating to works carried out by the plaintiff in preparation for exercising the cutting rights) in the sum of
$54,645.93; loss of net profit from harvesting and milling trees estimated to be in

excess of $2 million, general damages of $20,000, as well as interest and costs.

FORD v ENSOR [2018] NZHC 2903 [8 November 2018]

[4] The defendant did not immediately file a statement of defence but one was filed on 23 January 2017.

[5] The matter has been before the Court on a number of occasions. The plaintiff, by memorandum dated 10 August 2016, sought judgment by default. By minute dated
25 October 2016, Dobson J refused judgment by default saying that he was not satisfied the claim was a liquidated demand as defined in r 15.7(5). He directed that a copy of the minute be provided to the defendant.

[6] On 9 February 2017, the parties filed a joint memorandum indicating that the defendant would pay costs to the plaintiff of $1,115 in relation to the plaintiff’s application for default judgment, and that the plaintiff consented to the late filing of a statement of defence and discontinued the application for judgment by default.

[7] The fixture for formal proof set down for 3 March 2017 was vacated by

Dobson J on 10 February 2017.

[8] By minute dated 24 July 2017, Thomas J directed a one-day judicial settlement conference on 20 September 2017. That proceeded before Associate Judge Smith but did not result in settlement.

[9] After a teleconference on 18 October 2017, Associate Judge Smith issued a minute dated 20 October 2017 which, among other things, directed that the plaintiff file an amended statement of claim providing proper particulars of the claim for damages for alleged loss of profit by 2 November 2017; directing a statement of defence to the amended of claim by 16 November 2017; that sworn discovery lists were to be provided by the parties by 30 November 2017, and that the close of pleadings date was fixed at 21 December 2017. Further timetable directions were made in anticipation of a trial after 1 June 2018.

[10]…

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 Ford v Ensor

Details

AGLC: Ford v Ensor [2018] NZHC 2903
Case: [2018] NZHC 2903
Decision Date: 8 November 2018

CaseChat Overview and Summary

Mark Wayne Ford filed proceedings in the High Court against Charles Richard Ensor for an alleged breach of contract relating to cutting rights and trapping of animals on land owned by Ensor. Ford sought special damages, loss of profit, general damages, interest, and costs. The defendant did not initially file a statement of defence but did so later, and the matter proceeded through various procedural stages including a failed application for judgment by default and multiple adjournments. The case was scheduled for trial, but the defendant applied to vacate the fixture and transfer the proceedings to the District Court.

The legal issues before the Court were whether the proceedings should be transferred to the District Court and whether the plaintiff had complied with the procedural directions made by the Court. The Court had to consider the criteria set out in Moodie v Lane and other cases for transferring proceedings to the District Court under s 94 of the District Court Act. The Court also had to consider the plaintiff's failure to comply with procedural directions, including the requirement to file an amended statement of claim.

The Court found that the requirements of s 94(2) of the District Courts Act had been met and that there was no undue prejudice to the plaintiff in transferring the proceedings to the District Court. The Court found the case to be relatively straightforward, not particularly complex, and unlikely to raise an important question of law or fact. The amount in issue was well within the jurisdiction of the District Court, and the hearing was not expected to be lengthy. The Court found that it was in the interests of justice to transfer the proceedings to the District Court and vacated the fixture set for trial in the High Court.

The Court transferred the proceedings to the District Court and vacated the fixture set for trial in the High Court. The plaintiff's claim for damages had been significantly reduced from some $2 million to under $100,000, and the Court found that had the plaintiff obtained expert evidence prior to commencing the proceedings, they would not have been issued in the High Court. The Court found that the plaintiff had not complied with procedural directions, but given the limited extent of the plaintiff's potential loss, the proceedings should be transferred to the District Court.

Orders