Murphys Park Development LP v Green City Developments LP - [2022] NZHC 2727

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-002056

[2022] NZHC 2727

BETWEEN
MURPHYS PARK DEVELOPMENT LP

Plaintiff

AND

GREEN CITY DEVELOPMENTS LP

Defendant

Hearing: 25 August 2022

Appearances:

S Maloney for Applicant

R Woods and E Gambrill for Respondent

Judgment:

20 October 2022

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 20 October 2022 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Heritage Law, Auckland Loo & Koo, Auckland

E St John, Auckland
J D McBride, Auckland

MURPHYS PARK DEVELOPMENT LP v GREEN CITY DEVELOPMENTS LP [2022] NZHC 2727
[20 October 2022]

Introduction

[1] Murphys Park Development LP (Murphys Park) applies for an order that Green City Developments Ltd (Green City) respond to its notice requiring further particulars of its statement of defence and counterclaim, or alternatively that Green City file and serve a more explicit statement of defence and counterclaim.

[2] Murphys Park sought and was granted leave to rely on affidavits and pleadings in the related caveat proceeding CIV-2019-404-2694 for the disposal of this application.

Murphys Park initially sought particulars of five matters:1

(a)Particulars supporting the assertion that the plaintiff was required to provide the defendant with “monthly updates” (at paragraph 30(a) of the statement of defence and counterclaim dated 23 December 2021).

(b)Particulars of the plaintiff’s alleged failure to use “all reasonable commercial endeavours” to complete the enabling works by 20 August 2018 (at 30(a)).

(c)Particulars of the alleged “additional consulting fees and legal costs, caused by the delay” (at 31(a)).

(d)Particulars of the alleged “holding costs” (at 31(b)).

(e)Particulars of the alleged “loss of income” (at 31(c)).

[4] In a letter dated 26 January 2022, Green City particularised the first allegation (at (a) above) that Murphys Park failed to provide monthly updates.

[5] Furthermore, at the hearing Green City agreed to provide the particulars sought at (c) – (e) by 31 October 2022. It did so explicitly without accepting Murphys Park’s

1 Notice requiring defendant to give further particulars of statement of defence and counterclaim dated 19 January 2022.

allegation that the arrangement ordered by Associate Judge Bell in the caveat judgment2 imposed an obligation on Green City to quantify its claim to losses caused by the delay as soon as possible to allow any excess money to be released.

[6] Therefore, the sole issue I must determine is whether Green City should be required to provide particulars of its allegation that Murphys Park failed to use “all reasonable commercial endeavours” to complete the enabling works by the anticipated completion date of 20 August 2018.

Facts

[7] Murphys Park and Green City are developers with adjoining properties on Murphys Park Road, Flat Bush, Auckland.

[8] In May 2016, they entered into a boundary adjustment agreement under which Murphys Park transferred 2.5669 hectares of its land to Green City for payment of
$2,316,900 (the Agreement).

[9] As part of…

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 Murphys Park Development LP v Green City Developments LP

Details

AGLC: Murphys Park Development LP v Green City Developments LP [2022] NZHC 2727
Case: [2022] NZHC 2727
Decision Date: 20 October 2022

CaseChat Overview and Summary

The case of Murphys Park Development LP v Green City Developments LP was heard in the High Court of New Zealand. The plaintiff, Murphys Park Development LP, sought an order that the defendant, Green City Developments LP, respond to its notice requiring further particulars of the defendant's statement of defence and counterclaim, or alternatively, that the defendant file and serve a more explicit statement of defence and counterclaim. The plaintiff initially sought particulars of five matters, including the defendant's failure to use all reasonable commercial endeavours to complete the enabling works by a certain date, and particulars of alleged additional consulting fees, legal costs, holding costs, and loss of income caused by the delay. The court was required to decide whether the defendant should be required to provide particulars of its allegation that the plaintiff failed to use all reasonable commercial endeavours to complete the enabling works.

The court found that the allegation that the plaintiff failed to use reasonable commercial endeavours was analogous to a negligence claim where a plaintiff alleges that the defendant has failed to exercise the required standard of care. In that case, a plaintiff is required to plead particular aspects of the defendant's conduct that it says fell below the standard, even though the conduct is a matter of the plaintiff's knowledge. The court held that the defendant was required to give the plaintiff fair notice of the ways in which it says the plaintiff failed to meet that standard. The court was not satisfied that it would be unduly burdensome on the defendant to plead particulars of the ways in which it says the plaintiff failed to carry out its contractual obligation.

The court ordered the defendant to provide the particulars sought by the plaintiff by a certain date. The court also recorded the plaintiff's agreement to particularise the causes of the delay in its statement of defence to the counterclaim by a certain date. The court invited the parties to agree on a position on costs reflecting the concessions made before and during the hearing.

Orders