Philip Moore & Co Limited v Surridge - [2018] NZHC 172

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2016-485-735

[2018] NZHC 172

IN THE MATTER OF General Civil Proceedings

BETWEEN

PHILIP MOORE & CO LIMITED

Plaintiff

AND

ANNE JOSEPHINE SURRIDGE

Defendant

Hearing: On the papers

Counsel:

S Iorns for Plaintiff

D Grove for Defendant

Judgment:

16 February 2018

JUDGMENT OF CHURCHMAN J

Introduction

[1] The parties have applied to file further evidence and submissions after the closing of the hearing. The principal reason for this is because the plaintiff, at the hearing, did not file adequate evidence to prove its loss.

[2] It is also alleged by the defendant that Ms Pearson the principal witness for the plaintiff, fabricated evidence of the plaintiff’s losses. The plaintiff submits that the further evidence will satisfy the Court that the calculations she made were not fabricated but were reasonably based and accurate.

PHILIP MOORE & CO LIMITED v SURRIDGE [2018] NZHC 172 [16 February 2018]

Submissions

Affidavit from Mr Frittoli

[3] The defendant filed a memorandum on 27 November 2017 regarding a possible affidavit by Mr Frittoli in which he would simply annex an email (along with an attachment) he received from Ms Pearson on 11 October 2016. Mr Frittoli was unavailable to swear the affidavit until he returned to Italy on 9 December 2017.

[4] The plaintiff filed a memorandum on 27 November 2017, stating that they did not oppose the defendant’s request for further time to file an affidavit of Mr Frittoli, provided it was limited to the point indicated in the memorandum (being the annexure of an email along with an attachment from Ms Pearson).

Affidavits relating to evidence of loss

[5] The plaintiff filed a memorandum dated 6 December 2017 (received 7 December), noting that the defendant was seeking to adduce further evidence post- trial. The plaintiff stated that they consented to that application, provided their response by way of affidavit evidence from three witnesses was also accepted. Those three witnesses are Mr David Ingram, Mr James Cooper and Ms Marion Pearson.

[6] The plaintiff submits that the evidence from those three witnesses will satisfy the court that the calculations made by Ms Pearson of the loss suffered by the plaintiff were not fabricated as alleged but were reasonably based, accurate and less than the actual loss.

[7] The plaintiff concedes that there was a minor error in the plaintiff’s pleadings, in that the losses claimed were the difference between cost price and price paid rather than lost profits. It became a situation of lost profits instead of excessive price, however, with Ms Pearson explaining at [12] of her affidavit that:

When we filed this part of the claim, the advice I received was to just keep buying Ghibli products through PMA so the difference in prices could be claimed. We could not follow that advice, though, as the supply was not forthcoming, and the prices charged left next to no profit margin at all.

[8] The plaintiff submits…

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.

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Details

Case: [2018] NZHC 172
Decision Date: 16 February 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Philip Moore & Co Limited, the plaintiff, brought an action against Anne Josephine Surridge, the defendant. The dispute involved the plaintiff seeking damages for losses allegedly suffered due to the defendant's actions. The court was tasked with deciding whether the plaintiff could present additional evidence after the trial had concluded, which would support its claim of loss and counter the defendant's allegations that the evidence of loss was fabricated.

The legal issues centered around the admissibility of further evidence post-hearing, as governed by Section 98 of the Evidence Act 2006. This section stipulates that further evidence cannot be presented without the court's permission, and such permission should only be granted if certain conditions are met, such as ensuring no unfairness to the opposing party. The court also considered the principles established in case law, such as the need for the evidence to be crucial and not readily available through prior diligence.

The court concluded that while the additional evidence tended to support the plaintiff's assertion that the loss figures were not fabricated, it did not sufficiently quantify the actual losses incurred by the plaintiff. The court allowed the introduction of the further evidence to address the defendant's claim regarding the fabrication of evidence, but noted that it did not sufficiently establish the extent of the plaintiff's losses. Additionally, the court granted permission for the defendant to file an affidavit by Mr. Frittoli, provided the plaintiff's counter-evidence was also accepted, as there was no opposition from the plaintiff and no prejudice would result.

The court's final orders included the allowance for the submission of additional evidence by the plaintiff, with a deadline set for the filing of Mr. Frittoli's affidavit. The court emphasized that this evidence, although relevant to the issue of fabrication, did not adequately establish the claimed losses.

Orders