Haines v Herd - [2019] NZHC 130

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CIV-2014-488-187

[2019] NZHC 130

BETWEEN RODNEY DAVID HAINES and KATHLEEN ANNE NORMAN
Plaintiffs

AND

ROBERT JOHN HERD

First Defendant

RHUMBA HOLDINGS LIMITED

Second Defendant

Hearing: 11 February 2019 at 12 noon

Appearances:

Nathan Gedye QC for the Plaintiffs J Maassen for the Defendants

Judgment:

11 February 2019

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL (No.2)

Solicitors:
Richard C Mark, Kerikeri, for the Plaintiffs
Wadham Partners (M S Dobson), Palmerston North, for the Defendants

Copy for:
Nathan S Gedye QC, Auckland, for the Plaintiffs John Maassen, Wellington, for the Defendants
Herd Lawyers, Maroochydore, Queensland 4558, Australia, for the First Defendant

HAINES v HERD [2019] NZHC 130 [11 February 2019]

[1] The substantive hearing for this proceeding is to start on Monday 18 February 2019. Urgent rulings are required. Ideally, the trial Judge should deal with them, but as of this morning no trial Judge has been appointed. These matters require decision:

[a]the defendants’ application to file and serve an amended statement of defence after the close of pleadings date;

[b]the defendants’ application after the close of pleadings date for further and better discovery;

[c]whether the defendants may serve statements of evidence after the date set for them to serve their evidence; and

[d]the plaintiffs’ objections to parts of the defendants’ evidence.

[2] There are other matters that have fallen by the wayside. The defendants issued a subpoena for the second plaintiff, Ms Norman. Mr Gedye QC advised that the second plaintiff would appear if required and service of a subpoena on her is not necessary. The defendants served a notice to produce documents but, as I explained, that requires production of documents which have not been discovered. I am going to rule that the plaintiffs are not required to discover further documents. Correspondingly the notice to produce is not required.

What the case is about

[3] The plaintiffs are suing the defendants under an agreement for the sale of a Hatteras launch, “Its Time”. Mr Herd is the purchaser. Rhumba Holdings Limited, a Vanuatu corporation, guaranteed his performance. The plaintiffs live in Northland but have business interests in Vanuatu. Mr Herd is an experienced Queensland solicitor who has had business interests and land holdings in Vanuatu. I understand that he now lives in Gibraltar. Rhumba Holdings Limited is a Vanuatu corporation through which Mr Herd has interests in land on Espiritu Santo.

[4] In October 2011, Mr Herd and the plaintiffs entered into a written agreement for Mr Herd to buy “Its Time” for NZ$800,000. The consideration involved Mr Herd transferring 50 per cent of his interests in various islands in Vanuatu. That agreement included a guarantee of clear title. Clause 13 says:

The Vendor is the sole legal owner of the vessel and the vessel and all her gear mentioned in the inventory and specification attached will be passed to the Purchaser on settlement free from any mortgage,…

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 Haines v Herd

Details

AGLC: Haines v Herd [2019] NZHC 130
Case: [2019] NZHC 130
Decision Date: 11 February 2019

CaseChat Overview and Summary

Haines v Herd is a case involving a dispute over the sale of a Hatteras launch, "Its Time," between Rodney David Haines and Kathleen Anne Norman (the plaintiffs) and Robert John Herd (the first defendant), with Rhumba Holdings Limited (the second defendant) acting as a guarantor. The plaintiffs, who have business interests in Vanuatu, agreed to sell the vessel to Mr Herd for NZ$800,000, with the agreement including a guarantee of clear title. The sale involved three alternative payment methods, with the final method being that Mr Herd would pay AUD400,000 in cash and transfer AUD400,000 worth of land to the plaintiffs. The agreement was governed by Vanuatu law, excluding French law. After the vessel was delivered to Mr Herd, he failed to complete the purchase by the agreed date, leading the plaintiffs to re-take possession of the vessel and claim damages. The defendants have raised several defences, including failure to agree on the land to be transferred, failure to mitigate loss, and issues with the registration and title of the vessel.

The court considered several urgent rulings, including the defendants' application to file an amended statement of defence after the close of pleadings date, the defendants' application for further and better discovery, whether the defendants may serve statements of evidence after the set date, and the plaintiffs' objections to parts of the defendants' evidence. The court ruled that the defendants' application to amend their pleadings was dismissed, except for the addition of a defence of failure to mitigate. The court also ruled that certain parts of the defendants' evidence would not be admissible, specifically those related to the ownership and transfer of the vessel, and compliance with the Shipping Act. However, evidence regarding the Law of Property Act 1925 (UK) and the Land Leases Act was allowed. The court further ruled that the application for leave to apply for particular discovery after the close of pleadings date was dismissed. The court invited submissions on costs.

In summary, the court denied the defendants' application to amend their pleadings with certain new defences, ruled on the admissibility of evidence, and dismissed the application for further discovery. The case will proceed to trial with the remaining defences and evidence.

Orders