Routhan v PGG Wrightson Real Estate Limited - [2019] NZHC 3039

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-77

[2019] NZHC 3039

BETWEEN
PHILIP WILLIAM ROUTHAN and JULIA

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: 14 November 2019

Appearances:

Mr PW Routhan (self-represented for Plaintiffs) E L Keeble for Defendant

Judgment:

21 November 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 21 November 2019 at 10:00am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 21 November 2019

ROUTHAN v PGG WRIGHTSON REAL ESTATE LIMITED [2019] NZHC 3039 [21 November 2019]

[1] The plaintiffs have brought an application seeking further and better discovery by the defendant.

[2] Before setting out the classes of documents sought by the plaintiffs, it is necessary to give some brief background in relation to the plaintiffs’ claim. More detail is contained in a judgment I delivered on 15 February 2019, in relation to an application for security for costs by the defendant.1

[3] Having heard from Mr Routhan, on behalf of the plaintiffs, in respect of this application, it may be that some of the dates I gave in my earlier judgment for when particular events occurred were not entirely correct, but in any event, I will outline the key aspects of the chronology in this judgment.

[4] The plaintiffs were interested in buying a dairy farm on the West Coast. The sale of a property they had shown interest in fell through. A property which is known by the parties as “the Cook Farm property” had previously been on the market and when the purchase of the property in which the plaintiffs had originally shown interest fell through, the plaintiffs turned their attention to the Cook Farm property. Mr Routhan approached a real estate agent, Mr Daly, who was employed by the defendant company. The Cook Farm property had previously been listed by another agency (CRT) for sale and Mr Routhan provided Mr Daly with a CRT brochure which had been produced some time before the end of the 2009/2010 dairy season. That brochure recorded that the annual production from the Cook Farm property had averaged 103,000 kg of milk solids (“kg/ms”) for the previous three seasons, being 2006/2007, 2007/2008 and 2008/2009.

[5] Mr Routhan asked Mr Daly to see if the Cook Farm property was still on the market, but to do so without revealing that it was the plaintiffs who were interested in it.

[6] In early August 2010, Mr Routhan says that Mr Daly called in to the plaintiffs’ property in his vehicle having just visited the vendor of the Cook Farm property and confirmed that he had ascertained that the Cook Farm property was still on the market.

1 Routhan v PGG Wrightson Real Estate Ltd [2019] NZHC 169.

Upon Mr…

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: [2019] NZHC 3039
Decision Date: 21 November 2019

CaseChat Overview and Summary

The plaintiffs, Philip William Routhan and Julia Veronica Routhan, trustees for the Kaniere Family Trust, sought further and better discovery from the defendant, PGG Wrightson Real Estate Limited, in relation to a dispute over the sale of a dairy farm. The plaintiffs claimed that the defendant's real estate agent, Mr Daly, provided misleading information regarding the milk production figures for the farm, thereby breaching the Fair Trading Act 1986. The defendant opposed the application for discovery, arguing that the requested documents were irrelevant to the claims as pleaded.

The primary legal issue before the court was whether the plaintiffs were entitled to the discovery of the defendant's internal documents as part of their application for further and better discovery. The court had to determine whether the documents sought were relevant to the claims as pleaded and whether the plaintiffs had a right to such discovery. The court also needed to consider whether the plaintiffs' claim could be amended to include a new cause of action based on the defendant's failure to advise the plaintiffs that the vendor had not confirmed the Rural Information Sheet.

The court found that the plaintiffs' application for discovery, as framed, was unsuccessful because the requested documents were not relevant to the claims as pleaded. The court held that the plaintiffs' claim was based on the defendant's alleged misleading conduct in relation to the milk production figures and that the requested documents, which related to the defendant's internal processes for verifying production levels, were not pertinent to these claims. However, the court recognised that the plaintiffs might have a viable alternative cause of action based on the defendant's failure to advise them that the vendor had not confirmed the Rural Information Sheet. To avoid further amendments to the pleadings, the court ordered that the defendant disclose certain internal documents relating to the Rural Information Sheet. The court also set a timetable for the plaintiffs to file an amended statement of claim and for the defendant to file a statement of defence.

The court dismissed the plaintiffs' application for discovery as framed and ordered the plaintiffs to pay the defendant's costs on a 2B basis, along with disbursements, for the unsuccessful application. The court directed that the defendant provide the relevant internal documents within two weeks and set a timetable for further proceedings, including the filing of an amended statement of claim and statement of defence.

Orders