Marriott v Attorney-General HC Auckland Civ-2008-404-001437 - [2010] NZHC 2455

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2008-404-001437

UNDER Section 172(a) of the Land Transfer Act

1952

BETWEEN

PETER JOHN MARRIOTT MICHELLE SANDRA TAYLOR COLIN JAMES BISHOP Plaintiffs

AND THE ATTORNEY-GENERAL
Defendant

Hearing: 3-5 and 10 February 2010

Counsel: D K Wilson for the Plaintiffs

J R Burns for the Defendant

Judgment: 4 August 2010

JUDGMENT OF WHITE J

This judgment was delivered by me on 4 August 2010 at 4.30 pm
pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registra.co.nz

SoliciMARRIOTT

Turner Hopkins, PO Box 33237, Auckland 0662 for plaintiffs Crown Law, PO Box 2858, Wellington for defendant

john@turnerhopkins.conz james.burns(itcrownlaw.govt.nz

Counsel:

D K Wilson, PO Box 5153, Wellesley Street, Auckland dkw.barrister@xtira,cosiz

Table of Contents

Para No

Introduction [¹]

Factual background [6]

Pleadings [24]

Land Transfer Act 1952 provisions [31]

Issues [41]

A validly lodged caveat? [44]

Did the trustees sustain any "loss or damage" [53]

within the scope of s 172(a)?

Was any loss or damage sustained "through" [63]

the admitted omission and mistake?

Was any loss or damage "occasioned" by a [75]

breach of trust?

What was the amount of the loss or damage? [88]

Contributory negligence and/or failure to [105]

mitigate loss?

Result [114]

Introduction

Under s 172(a) of the Land Transfer Act 1952 (the LTA) a person who

sustains loss or damage through any omission or mistake in the performance of any duty, function or power imposed or conferred under the Act on the Registrar-General of Land (the Registrar-General) may bring an action against the Crown for recovery of damages. In this case there is no dispute that the Registrar-General through an employee of Land Information New Zealand (LINZ) omitted to notify a caveator that an application for lapse of a caveat had been made and then mistakenly treated the application for lapse of the caveat as a withdrawal of the caveat. The principal issues are whether the caveat was validly lodged and, if so, whether the caveator sustained any recoverable loss or damage "through" the acknowledged omission and mistake.

The caveator was the first plaintiff, Mr Marriott. Through his solicitors, he
lodged the caveat against dealings in a property which the trustees of his family trust had sold to a company called BRCB Limited (BRCB) on the basis of an alleged "buy back" agreement. The Registrar-General's omission and mistake occurred when BRCB applied for the caveat to lapse. The withdrawal of the caveat without notice to Mr Marriott enabled BRCB to sell the property to a third party.
The plaintiffs, the trustees of Mr Marriott's family trust, the Martay Family
Trust, claim that as a result of the wrongful removal of the caveat and the sale of the property without notice they were deprived of the opportunity to apply for orders that the caveat not lapse, specific performance of the "buy back" agreement and an interim injunction preventing BRCB from on-selling the property in breach of 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 Marriott v Attorney-General HC Auckland Civ-2008-404-001437

Details

AGLC: Marriott v Attorney-General HC Auckland Civ-2008-404-001437 [2010] NZHC 2455
Case: [2010] NZHC 2455
Decision Date: 4 August 2010

CaseChat Overview and Summary

The High Court of New Zealand ruled in Marriott v Attorney-General that the plaintiffs, the trustees of Mr. Marriott's family trust, were entitled to compensation under s 172(a) of the Land Transfer Act 1952 (LTA) for the loss they sustained due to the Registrar-General's omission and mistake in handling a caveat. The court found that the caveat was validly lodged and that the loss or damage sustained by the trustees was directly caused by the Registrar-General's actions. The court rejected the Crown's argument that the trustees' loss was due to their own negligence or failure to mitigate their loss. The court calculated the damages for the lost chance in the range of $850,000 to $1 million, taking into account the likely willingness of the parties to negotiate a settlement. The plaintiffs were awarded $850,000 plus interest and costs. The court also noted that the plaintiffs were not contributorily negligent and had taken all reasonable steps to mitigate their loss.

Orders