Lusty v Thorburn - [2021] NZHC 2045

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2593

[2021] NZHC 2045

UNDER The Contract and Commercial Law act 2017 and the Declaratory Judgments Act 1908

IN THE MATTER

of an application for specific performance

BETWEEN

ĀILEEN BERYL LUSTY, RONALD HUNT LUSTY and WARWICK JAMES ROLAND

BROWNE as executors of the Estate of Kenneth Richard Lusty

Plaintiffs

AND

CRAIG MAXWELL THORBURN, and

CARLY EVE THORBURN as trustees of the THORBURN TRUST

Defendants

Hearing: On the papers at Auckland

Appearances:

M J Matthew for the Plaintiffs A A H Low for the Defendants

Judgment:

9 August 2021

JUDGMENT (No. 2) OF POWELL J

[Application to Recall]

This judgment was delivered by me on 9 August 2021 at 11 am pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Lusty & Ors v Thorburn & Ors [2021] NZHC 2045 [9 August 2021]

[1] By judgment dated 15 July 2021, I dismissed various applications by the plaintiffs, Aileen Lusty, Ronald Lusty and Warwick Browne, as executors of the estate of Kenneth Lusty (“the executors”) seeking various types of relief arising out of a lease dated 29 March 1990 (“the lease”), and awarded costs against the executors.1

[2] The executors have now requested that the judgment be recalled pursuant to r 11.9 of the High Court Rules 2016. This application is opposed by the defendants, Craig Thorburn and Carly Thorburn, as trustees of the Thorburn Trust (“the trustees”).

The application

[3] The executors submit that the judgment should be recalled on the basis that the Court failed to determine issues that were properly put to it in the executors’ second amended statement of claim dated 19 February 2020 (“the claim”). Specifically the executors contend:

(a)The judgment makes finding regarding whether specific performance should be ordered under the executors’ first cause of action, however, fails to address or consider the executors’ claim for damages for breach of contract in the alternative.
(b)The judgment fails to address or consider the executors’ cause of action for damages, as the judgment does not contain the word “compensation” and the word “damages” appears only in the text of a quoted judgment.
(c)The judgment fails to consider the executors’ application for declaratory relief, as the word “declaratory” appears only on the cover page, the word “declaration” does not appear in the judgment, and the declarations sought are not considered or addressed in the judgment.

[4] In response, the trustees submit that this is not a case where recall is appropriate or required, as the Court has made clear findings which deal with all aspects of the relief pleaded. They contend that it was inherent in the decision of the Court with respect to specific performance that a claim to damages for breach of contract could

1 Lusty v Thorburn [2021] NZHC 1774.

not succeed, and that the declaratory relief sought was considered in the judgment even if not expressly referred to.

Recall

[5] The starting point…

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 Lusty v Thorburn

Details

AGLC: Lusty v Thorburn [2021] NZHC 2045
Case: [2021] NZHC 2045
Decision Date: 9 August 2021

CaseChat Overview and Summary

In Lusty v Thorburn, the plaintiffs, acting as executors of the estate of Kenneth Lusty, sought various types of relief arising out of a lease dated 29 March 1990. The defendants, Craig Maxwell Thorburn and Carly Eve Thorburn, as trustees of the Thorburn Trust, opposed the application. The primary legal issue in this case was whether the Court had failed to determine issues properly put to it in the plaintiffs' second amended statement of claim. Specifically, the plaintiffs argued that the Court had failed to address their claims for damages for breach of contract, as well as their application for declaratory relief. The Court had to decide whether the judgment adequately addressed these claims and whether there were grounds for recall under r 11.9 of the High Court Rules 2016.

The Court found that the judgment adequately addressed the issues raised by the plaintiffs. The Court had considered the plaintiffs' claims for damages and declaratory relief within the context of the proceeding as a whole. The judgment had found that specific performance was not available because granting a new lease would frustrate the Thorburn Trust's sole charitable purpose. As a result, there was no basis for finding a breach of contract and no basis on which the Court could consider damages for that alleged breach. Regarding the application for declaratory relief, the Court had found that there was no substantive reason for making a declaration as the lease was in breach of the terms of the Thorburn Trust. Therefore, the Court concluded that there were no grounds for recalling the judgment under r 11.9 of the High Court Rules 2016.

The application for recall is dismissed. The trustees are entitled to costs on the recall application on the same basis as set out at [91] of the judgment.

Orders