Signal v Berry - [2018] NZHC 239

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2015-031-35

[2018] NZHC 239

BETWEEN
ALLAN PHILLIP SIGNAL AND PRUDENCE LEA SIGNAL AS TRUSTEES OF THE SIGNAL PROPERTY TRUST

Plaintiff

AND

GEORGE LATHAM BERRY, DAVID

RICHARD TRAVERS SALTER, MICHAEL JOHN DE BUYZER AND DAVID MICHAEL JACKSON TRADING AS

BERRY & CO SOLICITORS
First Defendant

AND

MICHAEL JOHN DE BUYZER

Second Defendant

Hearing: On the papers

Counsel:

A R Shaw for Plaintiff

J Eckford for Defendants

Judgment:

26 February 2018

JUDGMENT OF CLARK J (APPLICATION FOR RECALL)

Introduction

[1] The plaintiff, the Signal Property Trust, sued its solicitors, the defendants, for loss caused by the defendants’ negligence and the first defendant’s breach of contract. On 6 October 2017, I gave judgment for the plaintiff and awarded damages totalling
$441,957.44.1

1 Signal v Berry [2017] NZHC 2466.

SIGNAL PROPERTY TRUST v BERRY & CO SOLICITORS [2018] NZHC 239 [26 February 2018]

[2]A notice of appeal was filed on 3 November 2017.

[3] On 15 February 2018, the parties filed a joint memorandum seeking recall of the judgment.

Substantive judgment

[4] The parties seek recall of two passages of the judgment. It is necessary to put those passages in context.

[5] The plaintiff Trust is engaged in property development and subdivision. The background to the claim began in 2006 when the plaintiff purchased a property with the intention of subdividing and selling the resultant eight lots. Mr Signal engaged Berry & Co, the first defendant to provide legal services. However, Berry & Co failed to obtain titles for the subdivision before the Council’s approval relating to the subdivision had lapsed.2 Certificates of Title were not issued until 15 August 2013.3

[6] The defendants admitted they breached their duty of care to the plaintiff and the first defendant admitted breach of contractual terms but the defendants denied liability for any loss. Causation and quantum were disputed.4

[7] The application for recall is directed to my quantification of damages in relation to Lots 5 and 6. In respect of Lot 6 I stated:

[51] The end result is that the plaintiff lost the very real prospect of sale to Mr Gunther and with it, the purchase price of $240,000. The law requires the plaintiff to show it had a substantial chance of sale. That is more than established. It follows that I see no basis for discounting the risk [sic]. As as [sic] June 2011 when title was expected to be available, Mr Gunther and Mr Signal were expecting to, and would have, executed the agreement for sale and purchase in accordance with their earlier agreement. Beyond the defendants’ wrongful conduct, no other event intervened to contribute to loss of sale. In those circumstances the quantification of damages is the full loss to the plaintiff of the $240,000 purchase price which would have been paid.⁵

2 At [4].
3 At [5].
4 At [5].
5 It is this italicised passage that the parties identify for…

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 Signal v Berry

Details

AGLC: Signal v Berry [2018] NZHC 239
Case: [2018] NZHC 239
Decision Date: 26 February 2018

CaseChat Overview and Summary

Signal v Berry is a case in the High Court of New Zealand, Wellington Registry, involving Allan Phillip Signal and Prudence Lea Signal as Trustees of the Signal Property Trust, who sued their former solicitors, George Latham Berry, David Richard Travers Salter, Michael John de Buyzer, and David Michael Jackson trading as Berry & Co Solicitors, for negligence and breach of contract. The Signal Property Trust sought damages for losses resulting from the defendants' failure to obtain titles for a property subdivision before the relevant approvals lapsed. The court had previously awarded the Trust damages totaling $441,957.44. The defendants filed a notice of appeal against this decision, but subsequently, the parties filed a joint memorandum seeking to recall the judgment.

The central legal issue in this case was whether the damages awarded for the lost opportunity to sell two specific lots should be reduced. The Trust argued that the court should recall and reduce the damages awarded for Lot 6, where the court had awarded the full purchase price of $240,000, and for Lot 5, where the court had discounted the full purchase price by the amount eventually received from the sale of the lot. The defendants, on the other hand, did not provide a specific reason for the recall other than an agreement on a reduced level of damages.

The court, in dismissing the application for recall, reasoned that the damages awarded were based on a comprehensive analysis and findings set out in the original judgment. The court found that the damages reflected the losses of opportunity as pleaded by the Trust and that there was no special reason to recall the judgment in the interests of justice. The court concluded that to grant the application would require substituting one sum for another without a proper rationale, which the original judgment provided. The application for recall was therefore dismissed, and the judgment remained in place, subject to the outcome of the appeal.

Orders