Shaw v Macalister Todd Phillips - [2014] NZHC 1948

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2014-425-000043 [2014] NZHC 1948

BETWEEN
GRAEME DESMOND SHAW and

SUSAN LINDA SHAW Plaintiffs

AND

MACALISTER TODD PHILLIPS Defendant

Hearing: 29 July 2014

Appearances:

A D G Hitchcock for Plaintiffs/Respondents
H C Matthews for Defendant/Applicant

Judgment:

19 August 2014

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
upon defendant's summary judgment application

[1] The plaintiffs were responsible for establishing Matakauri Lodge near Queenstown. In 2001 they arranged the sale of the Lodge. In the written agreement for sale and purchase, the purchasers agreed that Mr and Mrs Shaw would be granted seven days full board at no charge per annum conditional upon availability at the time. This was stated to be a “privilege … personal to Mr and Mrs Shaw”.

[2] The 2001 purchasers of the Lodge are no longer the owners of the Lodge, there having been subsequent sales and transfers.

[3] The current owners of the Lodge will not provide free board to Mr and Mrs

Shaw.

The role of the defendant

[4] The defendant (Mactodd) is a firm of solicitors. Mactodd acted for Mr and

Mrs Shaw in relation to the agreement for the sale of the Lodge in 2001.

SHAW v MACALISTER TODD PHILLIPS [2014] NZHC 1948 [19 August 2014]

Mr and Mrs Shaw’s alleged damage

[5] In their statement of claim, filed in May 2014, Mr and Mrs Shaw refer to the personal right which they were to have under the agreement as “the contractual license [sic]”.

[6] They assert that the contractual licence could have been made binding and enforceable by inclusion of a requirement that a memorandum of encumbrance be registered against the title creating a defeasible rent-charge which was unenforceable so long as the contractual licence was observed. Mr and Mrs Shaw assert that Mactodd was negligent in failing to ensure that there was such a contractual provision.

[7] Mr and Mrs Shaw’s statement of claim attaches an actuarial calculation which leads to a pleading that Mr and Mrs Shaw suffered loss of $215,752, being the amount required to put them into the position they would have been in if the contractual licence had been protected by encumbrance.

[8] In addition, Mr and Mrs Shaw claim $60,000 general damages for distress, anxiety, inconvenience and loss of enjoyment as a result of Mactodd’s negligence.

Defendant’s summary judgment application – the principles

[9] The starting point for a defendant’s summary judgment application is r 12.2(2) High Court Rules, which requires that the defendant satisfy the Court that none of the causes of action in the statement of claim can succeed.

[10] I summarise the general principles which I adopt in relation to the application:

(a) The onus is on the defendant seeking summary judgment to show that none of the plaintiffs’ causes of action can succeed. The Court must be left without any real doubt or uncertainty on the matter;

(b)The Court will not hesitate to decide questions of law where appropriate;

(c) The Court will not attempt to…

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 Shaw v Macalister Todd Phillips

Details

AGLC: Shaw v Macalister Todd Phillips [2014] NZHC 1948
Case: [2014] NZHC 1948
Decision Date: 19 August 2014

CaseChat Overview and Summary

The case Shaw v Macalister Todd Phillips involved a claim by Graeme Desmond Shaw and Susan Linda Shaw against their former solicitors, Macalister Todd Phillips, for negligence in relation to the sale of Matakauri Lodge near Queenstown in 2001. The plaintiffs alleged that the solicitors failed to advise them to obtain an enforceable right in relation to a contractual licence by registering a memorandum of encumbrance. As a result, the plaintiffs claimed loss of $215,752, being the present value of the contractual licence, and $60,000 in general damages for distress, anxiety, inconvenience, and loss of enjoyment. The defendant applied for summary judgment on the basis that the claim was time-barred under the Limitation Act 1950.

The court considered the principles of analysing a defendant's summary judgment application in cases involving contingent liability. The court noted that the onus was on the defendant to show that none of the causes of action in the statement of claim could succeed. The court also recognised that in cases involving flawed transactions, the plaintiffs could immediately have recovered the cost of addressing the defendant's failure to procure a memorandum of encumbrance. In this case, the court found that the plaintiffs' claim was barred by limitation because the plaintiffs suffered loss in 2001 when they received a less enforceable and, by its nature, less valuable outcome. The court granted summary judgment in favour of the defendant and reserved costs.

Orders