Signal v Berry - [2017] NZHC 2466

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2015-031-35 [2017] NZHC 2466

BETWEEN
ALLAN PHILLIP SIGNAL AND

PRUDENCE LEA SIGNAL AS TRUSTEES OF THE SIGNAL PROPERTY TRUST

Plaintiffs

AND

GEORGE LATHAM BERRY, DAVID RICHARD TRAVERS SALTER, MICHAEL JOHN DE BUYZER AND DAVID MICHAEL JACKSON TRADING AS BERRY & CO SOLICITORS

First Defendants

AND

MICHAEL JOHN DE BUYZER Second Defendant

Hearing: 21-25 November 2016 and 2 February 2017

Appearances:

A R Shaw for Plaintiffs
M E Parker for Defendants

Judgment:

6 October 2017

JUDGMENT OF CLARK J

Pursuant to r 11.5 of the High Court Rules I direct that the delivery time of this judgment is 4:45 pm
on 6 October 2017

SIGNAL and SIGNAL v BERRY and ORS, and DE BUYZER [2017] NZHC 2466 [6 October 2017]

Introduction

[1] This is a claim by the plaintiff against its solicitors for the loss said to be caused by their negligence and breach of contract. Allan Signal and his wife are trustees of the Signal Property Trust, the plaintiff. The Trust is engaged in property development and subdivision. In 2006 the Trust purchased a property in Foxton (the subdivision) with the intention of subdividing it into eight separate lots and selling the lots at a profit.

[2] The Horowhenua District Council (the Council) granted resource consent to create the subdivision in January 2008. On 17 June 2008 the Council certified the survey plan was approved pursuant to s 223 of the Resource Management Act 1991. Time started to run from this date. The certificate would expire three years later, that is, on 11 June 2011.

[3] On 7 November 2008 Mr Signal engaged Berry & Co, the first defendant, to provide legal services relating to the subdivision. On the same day, Berry & Co received an approval notice from Land Information New Zealand (LINZ) notifying it had “approved as to survey” the survey plan relating to the subdivision which had been approved by the Council.

[4] Berry & Co accepts it was on notice as a result of its receipt of this advice that the certificate issued by the Council would expire three years from its issue, namely, on 17 June 2011. Unfortunately, Berry & Co did not seek to obtain titles for the subdivision until 18 July 2011. The application for new titles for the lots was rejected because the Council’s approval had lapsed. Berry & Co had omitted to lodge consents of all adjoining property owners. Nor had the names and addresses of all adjoining owners and the required fees been provided.

[5] Certificates of title did not become available until 15 August 2013 with adverse consequences for the Trust. The plaintiff sues the defendants in negligence and for breach of contract. The defendants admit they breached their duty of care to the plaintiff and the first defendant admits breach of contractual terms but the defendants deny liability for any loss. Causation and quantum are disputed.

Background

[6] The chronological…

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 [2017] NZHC 2466
Case: [2017] NZHC 2466
Decision Date: 6 October 2017

CaseChat Overview and Summary

The plaintiff, Allan Phillip Signal and Prudence Lea Signal as trustees of the Signal Property Trust, brought an action against Berry & Co and Michael John De Buyzer for loss said to be caused by their negligence and breach of contract. The defendants admitted they breached their duty of care to the plaintiff and Berry & Co admitted breach of contractual terms but the defendants denied liability for any loss. The plaintiff sued in negligence and for breach of contract. The defendants argued that, for the following reasons, the plaintiff had suffered no loss: there was no market for the lots in the relevant period because the property market was depressed; there was no discernible change in the value of the lots in the relevant period and therefore no loss had been suffered; and the only written, firm and enforceable agreement for sale of any of the lots was that relating to Lot 3. The Court found that the defendants' failure to take the necessary steps before the expiry of the certificate, and the consequent inability to obtain title until 2013, was the direct cause of the loss to the plaintiff of Mr Gunther's intended purchase of Lot 6. The lack of title was not simply a contributing factor. It was the decisive factor in Mr Gunther's decision to abandon his plan to build his ‘dream home’ on Lot 6, forego the money he had spent on the property, and end the ambiguity and uncertainty which attended the lack of title and lack of knowledge as to when the title would become available. The Court found that the plaintiff had established the losses of opportunity pleaded at [33.2], [33.3] and [33.5] of its claim. The Court found the plaintiff was entitled to: 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); $6,200 in respect of the claim at [33.3] of the statement of claim; and $144,558.94 being the amount of the interest claim at [33.5] of the statement of claim.

Orders