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 DefendantsJudgment:
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…
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