Messenger v Goodman - [2012] NZCA 535

IN THE COURT OF APPEAL OF NEW ZEALAND

CA770/2011
[2012] NZCA 535

BETWEEN JAMES MESSENGER AND JUNE MARY MESSENGER
Appellants

AND JOHN MARTIN GOODMAN AND DEBORAH LEE RATTRAY
Respondents

Hearing: 17 October 2012

Court: Stevens, French and Venning JJ

Counsel: B M Stewart and P T Hall for Appellants
No appearance for Respondents

Judgment: 16 November 2012 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe decision of the High Court is quashed.
CJudgment is entered in favour of the appellants in the sum of $2,881,708.20 together with interest at the prescribed rate under the Judicature Act 1908 on the sum of $1,735,985.51 from and including 4 May 2009 to the date of this judgment.
DThe respondents must pay the appellants costs for a standard appeal on a band A basis plus usual disbursements.

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REASONS OF THE COURT

(Given by French J)

Introduction

Mr and Mrs Messenger were the vendors under an unconditional agreement for the sale and purchase of land. A dispute arose as to the date on which the contract required them to transfer title to the purchasers. The purchasers, Mr Goodman and Ms Rattray, contended it was 18 December 2006. The Messengers contended it was 18 December 2008.
Settlement did not ever take place. In March 2009 the Messengers cancelled the agreement and resold the property at a much lower price. They then sued Mr Goodman and Ms Rattray in the High Court for damages for breach of contract. Priestley J dismissed the claim holding that the Messengers were wrong in their interpretation of the contract regarding the settlement date and were themselves in breach in failing to transfer title in December 2006.[1]
[1] Messenger v Goodman HC Auckland CIV-2009-404-3974, 20 October 2011.
The Messengers now appeal that decision.
They do so on the grounds that even if the Judge was correct in his interpretation of the contract (which is conceded), they should still have succeeded in their claim because of the purchasers’ failure to tender settlement on 18 December 2006 or at any time thereafter. This was an argument which was not addressed in the decision.
The key issue raised by the appeal is whether on the evidence Mr Goodman and Ms Rattray have discharged the burden of proving that tendering payment on 18 December 2006 would have been an exercise in futility.
For completeness, we should record that Mr Goodman and Ms Rattray who had represented themselves in the High Court chose not to participate in the appeal. They did not file any papers. Before the appeal hearing commenced, we took the precaution of asking the Registrar to call the case outside the courtroom but there was no appearance. We are satisfied that Mr Goodman and Ms Rattray were aware of the hearing date.[2]
[2]A letter informing Mr Goodman and Ms Rattray of the hearing date was sent to them from the Registry by post and email on 3 May 2012.
Despite their absence, this Court was of course still under…

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 Messenger v Goodman

Details

AGLC: Messenger v Goodman [2012] NZCA 535
Case: [2012] NZCA 535
Decision Date: 16 November 2012

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Messenger v Goodman CA770/2011 [2012] NZCA 535 involved an appeal by James and June Messenger against John Martin Goodman and Deborah Lee Rattray. The dispute centered on the interpretation of a contract for the sale and purchase of a residential property, specifically the date on which the contract required the vendors to transfer title to the purchasers. The vendors contended the settlement date was 18 December 2008, while the purchasers argued it was 18 December 2006. The High Court had dismissed the vendors' claim for damages for breach of contract, holding that the vendors were incorrect in their interpretation of the contract and were themselves in breach for failing to transfer title in December 2006. The vendors appealed this decision, contending that the purchasers' failure to tender settlement on 18 December 2006 or at any time thereafter was an argument that had not been addressed by the High Court. The Court of Appeal considered whether the purchasers had discharged the burden of proving that tendering payment on 18 December 2006 would have been futile. The appeal court found that the purchasers had not discharged this burden, and therefore, the vendors were not in breach for failing to transfer title on 18 December 2006. The appeal court held that the purchasers were in breach of their contractual obligations for failing to tender settlement, and the vendors were entitled to recover their loss on the resale of the property. The appeal was allowed, the decision of the High Court was quashed, and judgment was entered in favour of the vendors in the sum of $2,881,708.20 together with interest at the prescribed rate under the Judicature Act 1908.

Orders