Singh v Rutherford - [2014] NZHC 399

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-005301 [2014] NZHC 399

IN THE MATTER OF an appeal against the decision of the
District Court at Manukau

BETWEEN GURPREET SINGH and MEENA SINGH Appellants

AND GLENN DOUGLAS RUTHERFORD and
WENDY KAREN JOLLY Respondents

Hearing: 14 and 21 February and 3 March 2014 [On the papers]

Counsel: D M O'Neill for the Appellants
M R T Colthart for the Respondents

Judgment: 7 March 2014

JUDGMENT OF DUFFY J [Re Quantification of Damages]

This judgment was delivered by Justice Duffy on 7 March 2014 at 3.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: D M O’Neill, Hamilton
M R T Colthart, Auckland

SINGH v RUTHERFORD [2014] NZHC 399 [7 March 2014]

[1] This judgment on the quantum of damages to be awarded to the appellants should be read together with the judgment I delivered in this proceeding on 31 May
2013 (see Singh v Rutherford [2013] NZHC 1276), and with the Minute I issued in this proceeding on 3 February 2014.

[2] In accordance with the Minute that I issued on 3 February 2014, the parties have filed further submissions on the quantification of the damages to be awarded to the appellants, plus interest.

[3] The respondents continue to argue that the areas of the actual canopy hectares of lemon trees and kiwifruit vines should be those which were adopted by the appellants’ expert, Ms Underwood, rather than the areas that are stated in the judgments of the District Court (see Singh v Rutherford DC Manukau CIV-2008-
055-0042, 29 August 2011) and this Court (see Singh v Rutherford [2012] NZHC

380), (2012) 10 NZBLC 99-702. The respondents contend that in those judgments, neither Judge Andrée Wiltens nor Wylie J made definitive findings on the areas of the missing canopy hectares.

[4] In the District Court, Judge Andrée Wiltens at [13] said the evidence of

Mr Prakash and Mr Singh:

… established the three parts of the orchard to comprise as follows:

older kiwifruit plants (blocks 1-5) 1.1425 (rounded up to 1.15) canopy hectares

younger kiwifruit plants (blocks 6-7) 0.7682 (rounded back to 0.75)
canopy hectares lemon trees (6 blocks) 1.60 canopy hectares.

[5] Judge Andrée Wiltens found that the breach of warranty as to the areas of the canopy hectares was overridden by the appellants’ failure to complete due diligence. However, in order to determine that there had been a breach of warranty, the Judge had to determine if the actual canopy hectares were the same or different in area from the warranted canopy hectares. I consider, therefore, that his statement on what the evidence established regarding the actual areas of canopy hectares is a finding that forms an integral part of his judgment; it is not obiter.

[6] Then when the appellants appealed to this Court, Wylie J found that the breach of warranty was enforceable and entitled the appellants to an award of damages. Wylie J adopted the actual canopy…

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.

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Details

Case: [2014] NZHC 399
Decision Date: 7 March 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Singh v Rutherford was heard and determined by Justice Duffy. The case involved an appeal by Gurpreet Singh and Meena Singh against the decision of the District Court at Manukau. The primary dispute centred on the quantification of damages to be awarded to the appellants. The respondents, Glenn Douglas Rutherford and Wendy Karen Jolly, argued that the actual canopy hectares of lemon trees and kiwifruit vines should be those adopted by the appellants' expert, Ms Underwood, rather than the areas stated in the previous judgments of the District Court and the High Court. The respondents contended that neither Judge Andrée Wiltens nor Wylie J made definitive findings on the areas of the missing canopy hectares.

The legal issues before the court were whether the unchallenged findings of the two courts on the actual areas of canopy hectares should prevail over Ms Underwood's measurements, and if the quantification of damages by Ms Underwood was correct. The court needed to determine if the respondents could be estopped from challenging the findings on the actual areas of canopy hectares, and whether the appellants were entitled to the sum of damages calculated by Ms Underwood, plus interest. Additionally, the court had to consider the costs and disbursements to be awarded to the appellants.

Justice Duffy concluded that the unchallenged findings of the two courts on the actual areas of canopy hectares must prevail over Ms Underwood's measurements. The court found that her mistaken use of figures that favoured the respondents did not constitute an estoppel preventing the appellants from benefiting from the findings in the District Court and the High Court. The court further found that Ms Underwood's quantification of the damages was correct. Consequently, the appellants were entitled to damages of $133,403.63, interest of $24,526.32, and costs of $10,402.73 for the appeal and $19,488 for the District Court hearing. The appellants were also awarded disbursements of $2,645.22 for the appeal and a further $14,325.17 for the costs of expert witnesses and a service fee.

In summary, the court awarded the appellants damages, interest, and costs, and directed that the disbursements for the District Court hearing be determined by the parties or, if they could not agree, by the Registrar.

Orders