Routhan v PGG Wrightson Real Estate Limited - [2020] NZHC 702

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000077

[2020] NZHC 702

BETWEEN
PHILIP WILLIAM ROUTHAN and JULIE

VERONICA ROUTHAN (as trustees for the KANIERE FAMILY TRUST
Plaintiffs

AND

PGG WRIGHTSON REAL ESTATE LIMITED

Defendant

AND

NELSON JOHN COOK

First Third Party

AND

COOKS STUD FARMS LIMITED

Second Third Party

AND

ROSS BISHOP

Third Third Party

Hearing: 6 March 2020

Appearances:

J Hodder QC for Plaintiffs E L Keeble for Defendant

No appearance for Third Parties

Judgment:

6 April 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 6 April 2020 at 3.45pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:6 April 2020

ROUTHAN v PGG WRIGHTSON REAL ESTATE LIMITED [2020] NZHC 702 [6 April 2020]

Introduction

[1] The plaintiffs acquired a dairy farm at Hokitika. The defendant was the vendor’s agent for the sale. The defendant provided the plaintiffs with historical production figures for the farm which the plaintiffs say were over-stated. The plaintiffs seek damages from the defendant pleading causes of action for breach of s 9 of the Fair Trading Act 1986, negligence and deceit.

[2] The plaintiffs applied for further discovery from the defendant seeking disclosure of documents relating to the defendant’s processes for verification of production levels before, at the time of, and after they purchased the farm. In a judgment of 21 November 2019, the application was dismissed on the basis that the documents were not relevant to the issues pleaded in the plaintiffs’ second amended statement of claim.1

[3]The plaintiffs now apply for:

(a)the recall of the judgment; or

(b)leave to appeal the judgment to the Court of Appeal; and

(c)a stay pending the hearing of the appeal.

[4] The Associate Judge who heard the discovery application was unavailable to hear this application on the day it was set down. Ideally, the application should have been heard by him. This is particularly so in relation to the recall application. The case law often assumes that the first-instance Judge will hear a recall application.2 Unfortunately, neither the Associate Judge nor I identified this as an issue prior to the hearing. I raised this with counsel who shared the view that the jurisdiction to recall a judgment (or grant leave to appeal) rests with the court and not a particular Judge. They did not object to me hearing the application. Counsel had travelled for the hearing and the plaintiffs are in difficult financial circumstances. I agreed to hear

1 Routhan v PGG Wrightson Real Estate Ltd [2019] NZHC 3039.
2 Munro v Gladvale Farms Ltd [2017] NZHC 2692 and Stewart v Engel [2000] 1 WLR 2268 at 2274H, [2000] EWCA Civ 362, [2000] 3 All ER 518, [2001] ECDR 25, [2001] CP Rep 9.

the application on the basis that should anything arise during the hearing that caused me concern as to my ability to deal with the matter I would abandon the hearing and refer it…

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: [2020] NZHC 702
Decision Date: 6 April 2020

CaseChat Overview and Summary

The plaintiffs, Philip and Julie Routhan, sought damages from PGG Wrightson Real Estate Limited (PGG), alleging breach of s 9 of the Fair Trading Act 1986, negligence, and deceit. The plaintiffs purchased a dairy farm and alleged that PGG overstated the historical production figures of the farm. The plaintiffs sought further discovery from PGG of documents relating to PGG's processes for verifying production levels before, at the time of, and after they purchased the farm. The Associate Judge dismissed the application for discovery on the basis that the documents were not relevant to the issues pleaded. The plaintiffs sought to recall the judgment, to obtain leave to appeal the judgment, and for a stay pending the hearing of the appeal.

The court considered the plaintiffs' arguments that the judgment should be recalled because the Associate Judge did not address the relevance of the documents sought to the plaintiffs' negligence cause of action. The court found that the judgment should be recalled because the Associate Judge conflated the compound pleading dealing with both negligent systems and negligent misstatement into a single pleading of negligent misstatement. The court further found that the documents the plaintiffs sought were relevant to the negligent systems claim. The court found that ordering further discovery was proportionate and ordered that PGG file a further affidavit of documents within 28 days of the date of the judgment. The court reserved leave to the plaintiffs to apply for an extension of time to file its supplementary list of documents if counsel was satisfied that it was not possible to do so due to the effects of the Covid-19 pandemic. The court reserved costs.

Orders