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Pascoe Properties Ltd v Attorney-General

Pascoe Properties Ltd v Attorney-General

Case [2014] NZCA 616 16 December 2014

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA755/2012
[2014] NZCA 616

BETWEEN	PASCOE PROPERTIES LIMITED Appellant
AND	ATTORNEY-GENERAL Respondent

Hearing:	11 September 2014
Court:	French, Courtney and Asher JJ
Counsel:	K B Johnston for Appellant M J Andrews and R D L Garden for Respondent
Judgment:	16 December 2014 at 11.30 am

JUDGMENT OF THE COURT

AThe application for leave to adduce further evidence is granted.

B The appeal is dismissed.

CCosts are reserved. The respondent is to file submissions on costs by 26 January 2015, and the appellant within five working days of the date of filing by the respondent.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Table of Contents

Para No
Introduction  [1]
The High Court decision  [8]
Grounds of appeal  [13]
The fresh evidence  [14]
Ostensible authority  [18]
     The law  [19]
    The course of dealing leading up to the renewal negotiation  [24]
     The course of dealing through the renewal negotiation  [31]
     Analysis of the course of dealing  [49]
Was there an agreement to renew the lease?
     The correspondence  [57]
     Analysis of the correspondence  [66]
     Subsequent actions  [73]
     Conclusion on agreement to renew  [83]
Damages  [85]
Result   [89]

Introduction

This appeal concerns whether an agent had authority to bind the Ministry of Economic Development (the Ministry) to a renewal of lease and, if so, whether an agreement to renew the lease was in fact formed and can give rise to a damages claim. In a judgment of 23 October 2012, Simon France J determined that the Ministry was not bound by the actions of the alleged agent, and that there was no contract to renew formed.[1] The landlord, Pascoe Properties Ltd (Pascoe), challenges that decision.
[1]Pascoe Properties Ltd v Attorney-General [2012] NZHC 2671.
The lease in question, dated 25 August 2003, related to a commercial building in Lower Hutt known as Levin House. The Ministry occupied the fourth and fifth floors of the building and related space. The lease commenced on 1 August 2003 and was for a term of three years, with two rights of renewal each for three years. The rights of renewal were exercisable by the Ministry giving written notice to the landlord at least three months before the end of the expiring term.
Pascoe purchased Levin House on 18 December 2003, after the lease had commenced. Pascoe had two directors: Lewis Thompson and Nanette Thompson. Mr Thompson was the Chief Executive and Pascoe’s principal representative for all dealings in relation to Levin House.
The lease had been executed for the Ministry by Neville Harris, who was the Deputy Secretary of the Business Services Branch of the Ministry. The Ministry had retained Paul Benjamin, a property consultant, to deal with matters relating to Levin House and other buildings it occupied.
There were leaking problems in the building. Mr Benjamin gave evidence of sending notices about leaks on 16 September 2004, 11 May 2005, 2 August 2005, 10 July 2006, 27 July 2006 and 7 September 2006. He deposed that…

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 Pascoe Properties Ltd v Attorney-General

Details

AGLC: Pascoe Properties Ltd v Attorney-General [2014] NZCA 616
Case: [2014] NZCA 616
Decision Date: 16 December 2014 at 11.30 am

CaseChat Overview and Summary

Pascoe Properties Ltd (Pascoe) appeals a decision of the High Court that it was not entitled to damages for breach of a lease renewal agreement with the Ministry of Economic Development (the Ministry). The Ministry had occupied a building leased from Pascoe, which was due for renewal in August 2006. Pascoe argues that the Ministry was bound by an agent to a renewal agreement. The Court of Appeal finds that the agent did have ostensible authority to bind the Ministry, but that no binding agreement was formed. The appeal is dismissed.

The lease for Levin House was due for renewal in August 2006. The Ministry did not vacate the premises, but continued to occupy and pay rent. Pascoe argues that it was entitled to damages for breach of the renewal agreement. The Ministry denied that such an agreement existed. The High Court found that the agent who negotiated the renewal had no actual authority to bind the Ministry, and that there was no ostensible authority to do so. Pascoe appealed the decision on the basis that the agent had ostensible authority, and that there was a concluded agreement to renew. The Court of Appeal found in favour of Pascoe on the issue of ostensible authority, but found that no binding agreement was formed. The appeal is dismissed.

The Court of Appeal found that the Ministry had represented through its conduct that the agent, Mr Benjamin, had authority to negotiate on its behalf. This was based on internal emails, which were not available at trial, and correspondence between Mr Benjamin and Pascoe. The Court of Appeal found that the agent had ostensible authority to bind the Ministry, but that no binding agreement was formed. The Court of Appeal found that while the parties agreed on the terms of the renewal, there was no intention to be bound until a formal deed was executed. The Court of Appeal found that the subsequent conduct of the parties was consistent with no binding agreement having been formed. The appeal is dismissed.

Orders