Signal v Berry
[2018] NZHC 239
•26 February 2018
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 DefendantAND
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 recall.
[8] Turning to Lot 5 I found that the circumstances in which its sale failed were different from the circumstances leading to the failed sale of Lot 6.6 I was satisfied that if title had been available in June 2011 the sale of Lot 5 would have proceeded at the agreed purchase price of $240,000 but in light of events subsequent to that date I found the uncompleted sale, as at September 2013, could not be attributed solely to the defendants’ wrongful conduct. I then stated:
[64] But the claim is one for lost opportunity: because the sales of Lots 5 and 6 did not proceed in mid-2011, the Trust lost the opportunity, it is said, to fund the placement of relocatable homes on the subdivision by August 2013, thereby enhancing its marketability.
[65] The plaintiff has established there was a substantial chance of selling Lot 5 in mid-June 2011. But for the defendants’ conducted [sic] I find it was highly likely Lot 5 would have sold at the agreed purchase price of $240,000.
[9] The end “Result” is set out at [101] to [103]. In terms of those parts of its statement of claim which the plaintiff had established I stated:
[101] The plaintiff has succeeded in establishing the losses of opportunity pleaded at [33.2], [33.3] and [33.5] of its claim. It follows that the plaintiff is entitled to:
(a)the full amount of the purchase price of $240,000 it would have received in respect of the sale of each of Lots 5 and 6 but discounted by the $203,000 which the plaintiff received from the eventual sale of Lot 5 ($277,000);
[10] The parties seek recall of that part of [51] which I have italicised (at [7] above) and all of [101](a).
[11] In their joint memorandum the parties observe that the damages award included the sum of $240,000 for Lot 6 reflecting its value at the time at which title should have been available. The parties then observe that I similarly assessed the value of Lot 5 at $240,000 however the actual damages awarded was only $37,000 reflecting the sale price of Lot 5 for $203,000. These two observations accurately reflect the judgment at [51] and [101](a).
[12] The parties’ memorandum then states that no discount was applied to Lot 6 to take into account the fact that it is still owned by the plaintiffs. That, also, is correct.
6 Signal v Berry, above n 1 at [61].
[13] Beyond what I have set out, and that the parties seek recall pursuant to r 11.9 of the High Court Rules, the parties identify no basis for their application.
Assessment
[14] Subject to appeal a judgment stands once delivered. The recall of a judgment is a serious step taken in the limited categories of case set out in Horowhenua County v Nash (No 2):7
…first, where, since the hearing there has been an amendment to a relevant statute or regulation or new judicial decision of relevance and high authority;
secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and
thirdly, where for some other very special reason justice requires the judgment be recalled.
[15] Beyond their agreement that damages should be “reduced by $167,000 to a total $274,957.44 plus costs” the parties do not identify which, if any, of the three narrow bases for recall they rely upon. Here, the only possible category is the third: that for some very special reason, justice requires the judgment to be recalled.
[16] But the parties advance no such special reason justifying recall in the interests of justice. Rather, the parties have reached an agreement as to a reduced level of damages payable to the plaintiff and the implication (it seems) is that I omitted to reduce, as the parties would now have them reduced, the damages to be awarded in respect of Lot 6.
[17] The application amounts to a substantive challenge to my judgment. The plaintiff’s claim has been determined in a judgment that reflects my intentions. What is clear from the judgment itself is that:
(a)Lot 5 sold for $203,000 in June 20158 and the full amount of the purchase price $240,000 was to be discounted by that amount.9
7 Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633, affirmed in Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [3].
8 Signal v Berry, above n 1 at [7](e).
9 At [101](a).
(b)In respect of Lot 6 the circumstances bearing on my quantification of damages are described at [51] and in the passages preceding [51].
(c)Importantly, the award of damages is based on the losses of opportunity pleaded at [33.2], [33.3] and [33.5] of the statement of claim. As I stated at [101] the plaintiff succeeded in establishing the losses of opportunity pleaded at those paragraphs.
[18] I decline to engage in any further explanation of my reasoning particularly as the judgment is under appeal.10
[19] The parties seek the substitution of the sum I awarded at [51] and [101](a) with a lesser sum that they agree upon. But their application overlooks the fact the amount of the award was reached following the findings and analyses to which I have referred. To grant the application would require more than the substitution of one sum for another. It would require a rationale for the substituted sum which my judgment does not contain.
[20] Accordingly, I do not propose to recall my judgment. For better or for worse the judgment must stand, subject to the outcome of the appeal. The parties remain free, of course, to pursue their apparent agreement on the sum to which the plaintiff is entitled.
[21]The application is dismissed.
Karen Clark J
Solicitors:
C & F Legal, Nelson for Plaintiffs
Parker Cowan, Queenstown for Defendants
10 Similarly, I do not take this opportunity to correct the typographical errors that the judgment unfortunately contains. Some are indicated where I have added “[sic]” following errors in the passages which are quoted above.
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