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 hectares as Judge Andrée Wiltens found them to be: see [6] of Singh v Rutherford [2012] NZHC 380. In finding the breach of warranty was enforceable, Wylie J would have relied upon there being a difference between the actual areas of canopy hectares and the warranted areas. Thus, the view that he took of the actual areas of canopy hectares forms part of the judgment.

[7]      I am satisfied, therefore, that the unchallenged findings of two courts on the actual areas of the canopy hectares of the lemon trees and kiwifruit vines must prevail over the measurements that Ms Underwood adopted.  Her mistaken use of figures that are more favourable to the respondents cannot constitute an estoppel that precludes   the  appellants   from   enjoying  the   benefit   of  the  findings   in   the District Court and this Court.

[8]      The respondents have not otherwise challenged the revised calculation of Ms Underwood to arrive at the sum of damages to be awarded.  I am satisfied that her quantification of the damages is correct.

[9]      It follows that the appellants are entitled to:

(a)       Entry of judgment against the respondents;

(b)      Damages in the total sum of $133,403.63; and

(c)       Interest in the total sum of $24,526.32.

[10]     Regarding costs, the appellants have been successful in this Court.  They are also entitled to costs for the defended hearing in the District Court.

District Court costs

[11]     The appellants claim costs of $19,488 for the hearing in the District Court.

[12]     The respondents in their memorandum on costs dated 21 November 2013 take no issue with the appellants’ calculation of 2B costs for the hearing in the District Court.

Costs on appeal

[13]     The appellants seek costs at category 2B for the appeal.  They calculate these at $12,238.50.  The respondents have not challenged the appellants’ calculation of costs.

Respondents’ opposition to costs

[14]     The respondents argue that, as the appellants only enjoyed partial success in the appeal, costs should be reduced by 50 per cent.  They rely on Packing in Ltd (in liq) v Chilcott (2003) 16 PRNZ 869 (CA).

[15]     Packing in Ltd is a case where the opposing parties each had similar success. That is not the case here.  The appellants were not entirely successful insofar as their claim for damages was reduced from the $200,000 they claimed (to bring themselves within the District Court jurisdiction) to $133,403.63.  But in all other aspects, they were successful.  In Singh v Rutherford DC Manukau CIV-2008-055-0042, 9 August

2012, Judge Andrée Wiltens found there was no loss and, therefore, the appellants had no entitlement to damages.   This finding was overturned on appeal.   The appellants point out that there was no “Calderbank letter” here.   Further, there is nothing to suggest that the respondents would have conducted their case differently if  they  were  aware  that  the  damages  claim  was  for  $133,403.63,  rather  than

$200,000.   Damages of $133,403.63 is a respectable outcome for a claim in the District Court.  I accept that the appellants did not enjoy a full measure of success. However, I am satisfied that the difference between the damages they were awarded and those for which they claimed is not something that should be reflected in a reduced costs award.

[16]     I do, however, consider that the respondents have been put to more trouble

and cost than was necessary.  This is regarding the appellants’ failure to present the

quantification of their loss in a concise and efficient manner.   Ms Underwood’s failure to use the appropriate figures for quantifying the damages first time around put the respondents to unnecessary cost.  For that reason, I consider that the costs of

$12,238.50 should be reduced by 15 per cent.   This brings the costs on appeal to

$10,402.73.

[17]     The respondents argue that the costs in the District Court should be reduced by 50 per cent.  This is to reflect the reduced award of damages (partial success). The appellants argue that there is no basis for reducing the costs award in the District Court.  I agree, for the same reasons as before.  With this hearing, there is nothing on the part of the appellants that supports a reduction of the costs award.  I find, therefore, that they are entitled to costs of $19,488.

[18]     The appellants seek disbursements in both the District Court and on appeal. For the appeal, the disbursements include $2,645.22 for the Court fees and photocopying.  I find they are entitled to these.

[19]     For the District Court hearing, the appellants seek to have disbursements ascertained.   I direct that if the parties cannot agree on the disbursements for the District  Court  hearing,  they  are  entitled  to  reasonable  disbursements  to  be determined by the Registrar of that Court.

[20]     There are additional disbursements that I shall deal with separately.  These are the costs of the expert witnesses.

[21]     The appellants seek a total of $14,335.17 for three expert witnesses and a service fee:

Fruition Horticulture (Ms Underwood)  $8,707.00; Agrilink New Zealand Ltd (Andrew Barber)              $3,808.64; Affordable Mobile Surveyors Ltd (Susheel Prakash)  $1,637.50;

Translegal Services 2000 Ltd  $   182.03 (service fee).

[22]     The respondents contend that the appellants should not recover the full costs of these expenses. They argue that the total amount of these costs should be no more than $5,628.17.  The costs of Ms Underwood’s services are of particular concern to them  as  they  assert  her  evidence  was  not  helpful  to  the  Court.    However,  the rejection of aspects of Ms Underwood’s evidence in the judgment of 31 May 2013 ultimately  led  to  a  lower  damages  award  against  the  respondents  than  might otherwise have been the case.   Those deficiencies in her evidence have not detrimentally impacted on the respondents.  I see no reason, therefore, to reduce the amount the appellants can recover for her fee from the respondents.  I am satisfied that the appellants are entitled to recover the full costs of their experts and the Translegal services fee.  It follows that they are entitled to further disbursements of

$14,325.17.

Result

(a)       Judgment is entered against the respondents;

(b)      Damages of $133,403.63 are awarded against the respondents; (c)     Interest of $24,526.32 is awarded against the respondents;

(d)The appellants are awarded costs of 10,402.73 for the appeal, and costs of 19,488 for the District Court hearing;

(e)      The  appellants  are  awarded  disbursements  of  $2,645.22  for  the appeal.  Reasonable disbursements for the District Court hearing are to be determined by the parties and if the parties cannot agree, then by the Registrar; and

[23]     The appellants are also awarded disbursements of $14,325.17 for costs of expert witnesses and service fee.

Duffy J