Humphries v Carr - [2011] NZCA 314

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA565/2010
[2011] NZCA 314

BETWEEN RODNEY JOHN HUMPHRIES
Appellant

AND EWAN ROBERT CARR
Respondent

Hearing: 21 June 2011

Court: Randerson, Keane and Allan JJ

Counsel: A R Gilchrist and L M Nicholson for Appellant
S P Rennie and J E Bayley for Respondent

Judgment: 8 July 2011 at 11.30 a.m.

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe appellant must pay costs to the respondent as for a standard appeal on a band A basis together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

This appeal is another round in long-running litigation between the appellant Mr Humphries, the respondent Mr Carr and their associated business interests. Those interests involved three dairy farms in the Maniototo area, the property known as the Styx Lodge at Paerau, and the Danseys Pass Coach Inn.
Following the death in 2003 of a third joint venture partner in the dairy farms, the relationship between Messrs Humphries and Carr deteriorated. In an attempt to resolve the conflict a deed was executed in February 2005, the effect of which was to entitle Mr Carr, upon the performance of certain conditions, to receive all the shares in Brookside Properties Limited (BPL), the owner of the Styx Lodge.
Contemporaneously, Mr Carr was granted an option to purchase the assets and undertaking comprising the dairy farms which were owned by the Big Sky group of companies.
Mr Carr alleged that Mr Humphries had defaulted in his obligations under the deed of February 2005 relating to the BPL shares. On 16 November 2006, Associate Judge Christiansen granted Mr Carr summary judgment requiring Mr Humphries to specifically perform the terms of the deed.[1] Mr Humphries filed an appeal against the judgment but this was later abandoned.[2]
[1] Carr v Humphries HC Dunedin CIV-2006-412-513, 16 November 2006.
[2] Humphries v Carr CA269/06.
In the meantime, other proceedings were issued by Mr Carr in early 2007. On an ex parte basis, interim liquidators were appointed for the Big Sky group and a Mareva injunction was also granted. This led to the appointment of receivers by the Bank of New Zealand (the major creditor of the Big Sky group).
On 3 May 2007, a settlement was reached which culminated in the execution of an Amended Settlement Agreement (ASA) on or about 16 May 2007. It is common ground that the ASA was designed to effect a clean break between the parties and their various business interests. Under the ASA, Mr Carr agreed to purchase the dairy farm and associated assets, the Danseys Pass property (owned by a company called Anesyds Ltd) and the shares in BPL. The ASA provided that settlement of all three transactions contemplated by the ASA was to occur simultaneously by 4 pm on 31 May 2007, time being of the essence.
The settlement did not take place by that time and the ASA was cancelled…

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 Humphries v Carr

Details

AGLC: Humphries v Carr [2011] NZCA 314
Case: [2011] NZCA 314
Decision Date: 8 July 2011

CaseChat Overview and Summary

The appeal in Humphries v Carr was brought by Rodney John Humphries against Ewan Robert Carr. The appeal related to a long-standing litigation between the parties and their associated business interests, which included three dairy farms in the Maniototo area, the property known as the Styx Lodge at Paerau, and the Danseys Pass Coach Inn. The dispute centered on the execution and subsequent cancellation of an Amended Settlement Agreement (ASA) which was intended to resolve the conflicts between the parties and their business interests. The key legal issues were whether the ASA constituted an accord and conditional satisfaction and whether Mr Carr was precluded from enforcing the judgment for specific performance due to his wrongful conduct.

The Court of Appeal found that the Judge was correct in interpreting the ASA as an accord and conditional satisfaction. The agreement was conditional upon the performance of the settlement, and it did not operate to discharge any existing cause of action unless and until there had been performance. The Court also held that Mr Carr was not precluded from enforcing the judgment for specific performance on the grounds of his wrongful conduct. The principle that a person should not be permitted to take advantage of their own wrong was deemed not to apply in this context, as Mr Carr was not taking advantage of a benefit under the contract he had breached. Instead, he was enforcing a benefit that existed independently before the execution of the ASA.

The appeal was dismissed, and the appellant was ordered to pay costs to the respondent as for a standard appeal on a band A basis together with usual disbursements.

Orders