Noel Crowhurst v Go West Realty Limited

Noel Crowhurst, a real estate consultant, and his firm, Go West Realty Limited, appealed against the refusal of Paterson J to recall a judgment he had delivered allowing an appeal from the District Court in a claim for damages or compensation arising out of the sale of a house property. The floor area of the property was 3,552 sq feet, but the buyers were advised that it was around 4,500 sq feet. The buyers claimed damages for misrepresentation under the Contractual Remedies Act 1969 and compensation for breach of the Fair Trading Act 1986. The District Court dismissed the claim, but Paterson J allowed the appeal under the Fair Trading Act and fixed the compensation at $36,000, apportioned as to 3/4ths against the real estate agents and 1/4th against the sellers. The real estate agents applied to Paterson J to recall his judgment, contending that he had not addressed their primary argument as to apportionment. The Judge accepted that that point had been the subject of submissions by counsel for the real estate agent and was not mentioned in the judgment and that the applicable principles were as stated by Wild CJ in Horowhenua County v Nash (No 2) [1968] NZLR 632. Paterson J rejected the argument for recall based on the third limb for reasons which he explained as follows: If I had directed my mind to the matters now raised by Mr Napier, I may have come to a different conclusion on the assessment of the respective fault. However, I would have still apportioned a large proportion of the responsibility to the agents.

The Court of Appeal held that the Judge directed his mind to the recall principles and it came down to the question of whether they were satisfied that he was plainly wrong in the decision he reached. The Court of Appeal was satisfied that the Judge was entitled in the exercise of his discretion to refuse leave. The appeal was dismissed and the respondents were entitled to costs.