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Green v Carr

Green v Carr

Case [2018] NZHC 3408 19 December 2018

Contract Formation

Breach of Contract

Variation or Affirmation

Compensatory Damages

Estoppel

Contract Law

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2018-488-83

[2018] NZHC 3408

UNDER the District Courts Act 1947

IN THE MATTER

of an appeal against the decision of the District Court

BETWEEN

JESSIE MAREE GREEN

Appellant

AND

IAN RAY CARR

Respondent

Hearing: 19 November 2018

Counsel:

R C Mark for Appellant

J P Golightly and D P Reeves for Respondent

Judgment:

19 December 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 19 December 2018 at 1:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Richard Mark (Kerikeri) for Appellant
Marsden Woods Inskip Smith (Whangarei) for Respondent

GREEN v CARR [2018] NZHC 3408 [19 December 2018]

Introduction

[1] Ms Green appeals a decision of Judge Harrison in the District Court ordering her to pay Mr Carr $12,500 under an agreement to which they are both party.1

Background

[2] Ms Green is a registered proprietor of land which adjoins land owned by Mr Carr. Ms Green’s land had no viable access to the nearest road (Motukiore Road). Proceedings were initiated in the High Court to gain access to Motukiore Road, across Mr Carr’s land. Mr Carr counterclaimed. A judicial settlement conference was convened and on 23 March 2009, after lengthy negotiation, a written settlement agreement was entered into by the parties. The agreement provided, relevantly:

(a)For the granting of a right-of-way easement by Mr Carr following a route shown on a schematic plan attached to the settlement agreement.

(b)Mr Carr would construct a roadway (earthworks only) along the right- of-way. Its width was to be 4.5 metres, excluding shoulders, and the gradient would not exceed 1 in 5.

(c)The registered proprietors of Ms Green’s land would pay Mr Carr
$25,000 according to a stipulated timetable. This payment was to settle Mr Carr’s counterclaim. It related to fencing issues and had nothing to do with the easement.

(d)Ms Green and the other registered proprietors of her land were to pay Mr Carr, promptly, $5,000 upon completion of the roadway.

[3] Mr Carr (through a contractor) constructed the roadway on 24 and 25 April 2009. On 1 May 2009, Ms Green and the other registered proprietors caused their solicitors to pay the $5,000 to Mr Carr. The only reservation attached to the paying of the $5,000 was a concern about the stability of the earthworks.

1 Carr v Green [2018] NZDC 12906.

[4] At this point, I introduce Mr Green. He is Ms Green’s father. He is not a party to the dispute and he is not a registered proprietor of Ms Green’s land. However, he is the patriarch and his views and decisions are accepted as binding Ms Green as her agent. It seems clear that Mr Green and Mr Carr do not have an easy relationship. Points of dispute between Mr Green and Mr Carr arose after the roadway was constructed. These are set out in a letter dated 20 August 2009 from Webb Ross, the…

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 Green v Carr

Details

AGLC: Green v Carr [2018] NZHC 3408
Case: [2018] NZHC 3408
Decision Date: 19 December 2018

CaseChat Overview and Summary

Jessie Maree Green appeals a decision of Judge Harrison in the District Court, who ordered her to pay Ian Ray Carr $12,500 under a settlement agreement to which they are both party. The settlement agreement provided for the granting of a right-of-way easement, with Mr Carr to construct a roadway along the right-of-way. Ms Green and the other registered proprietors of her land were to pay Mr Carr $5,000 upon completion of the roadway. Mr Carr constructed the roadway, but deviated from the route shown on the schematic plan attached to the settlement agreement. Ms Green and the other registered proprietors paid the $5,000 with a reservation about the stability of the earthworks. However, they took no further steps to perform obligations under the agreement pertaining to them. Mr Carr sued Ms Green for the $12,500 and was successful in the District Court. The issues on appeal were whether Mr Carr constructed the roadway in compliance with the specifications in the settlement agreement, whether the changed route of the roadway breached Mr Carr’s obligations under the settlement agreement, and whether Mr Green’s and Ms Green’s actions after the construction of the roadway amounted to a variation of the agreement or otherwise an acceptance of what was done. The court found that the roadway was constructed in compliance with the specifications in the settlement agreement. The court found that Mr Carr was not contractually obliged to construct the roadway in strict accordance with the route designated in the schematic plan attached to the contract. Even if he was, his failure to do so would not justify Mr Green refusing to perform the separate obligation of paying him $12,500 for the fencing because the construction of the roadway was not a condition precedent. If the court were wrong about this, Mr Green should be estopped from enforcing his rights under the contract due to his subsequent representation that he accepted Mr Carr’s breach. The appeal was dismissed and Mr Carr was entitled to costs.

Orders