Singh v Rutherford - [2013] NZHC 2301

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-005301 [2013] NZHC 2301

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: 28 August 2013

Counsel:

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

Judgment:

5 September 2013

JUDGMENT OF DUFFY J

[Reasons re Refusal of Application for Leave to Appeal]

This judgment was delivered by Justice Duffy on 5 September 2013 at 11.00 am, 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 and JOLLY [2013] NZHC 2301 [5 September 2013]

[1] The respondents were unsuccessful in their application for leave to appeal to the Court of Appeal. The reasons for the refusal of leave now follow.

[2] The respondents’ application for leave to appeal identified four issues. They were:

(a) Whether the correct measure of any loss suffered by the plaintiffs is diminution of value of the plaintiffs’ property, or loss of profit arising from the plaintiffs’ operation of the orchard at the property;

(b)If the loss of profit is the correct measure, whether the failure by the appellants to establish on the balance of probabilities the amount of loss of profit at trial justified the dismissal of the appellants’ claim;

(c) Whether the High Court on appeal ought to attempt to assess damages based on evidence given at trial, when the trial Judge has been unable to do so; and

(d)Whether, in the circumstances, the High Court ought to have referred the matter back to the District Court to assess damages.

[3] This case has a tortured history. The full details are to be found in the judgments of Wylie J: see Singh v Rutherford [2012] NZHC 3801, [2012] NZAR
323 and in the judgment from which the respondents now seek leave to appeal: see

Singh v Rutherford [2013] 1276, 31 May 2013.

[4] In short, the appellants chose to reduce their claim to enable them to commence proceedings in the District Court. One of their claims was that the respondents had breached a contractual warranty as to the size of the canopy hectares of a lemon and kiwifruit orchard. The District Court found that there was a clear difference between the warranted size of the orchard and the actual size, but found that the appellants had not relied on the warranty when they purchased the orchard. Thus, they failed in their claims for loss. On appeal to this Court, Wylie J found that the warranty was enforceable, and that the breach meant that the appellants could

claim for their loss. The proceeding was sent back to the District Court to determine loss and to quantify damages. The District Court found that the appellants had not proved that they had suffered any loss. The judgment was appealed to this Court…

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 Singh v Rutherford

Details

AGLC: Singh v Rutherford [2013] NZHC 2301
Case: [2013] NZHC 2301
Decision Date: 5 September 2013

CaseChat Overview and Summary

In the case of Singh v Rutherford, the respondents appealed the decision of the District Court, which had found that the appellants were not entitled to damages for breach of a contractual warranty regarding the size of an orchard. The appellants had argued that the respondents breached the warranty and that they had suffered losses as a result. The District Court had dismissed the appellants' claim, finding that they had not relied on the warranty when purchasing the orchard. On appeal to the High Court, Wylie J found that the warranty was enforceable and that the appellants could claim for their loss. The case was sent back to the District Court to determine the loss and to quantify damages, which again found that the appellants had not proved that they had suffered any loss. The judgment was then appealed to the High Court where Duffy J found that the appellants had proved some of their loss and were entitled to a lower sum of damages than they had calculated. The respondents sought leave to appeal to the Court of Appeal, raising four issues for consideration. The first issue was whether the correct measure of any loss suffered by the plaintiffs is diminution of value of the plaintiffs' property, or loss of profit arising from the plaintiffs' operation of the orchard at the property. The second issue was whether the failure by the appellants to establish on the balance of probabilities the amount of loss of profit at trial justified the dismissal of the appellants' claim. The third issue was whether the High Court on appeal ought to attempt to assess damages based on evidence given at trial, when the trial Judge has been unable to do so. The fourth issue was whether, in the circumstances, the High Court ought to have referred the matter back to the District Court to assess damages.

Duffy J considered the legal tests for the grant of leave to appeal, which were set out in Waller v Hider and Snee v Snee. The respondents argued that their proposed appeal raised a matter of general legal importance regarding the correct measure of damages for a breach of a contract for sale and purchase. However, Duffy J found that this argument did not raise any new significant issues of general importance that warranted the attention of the Court of Appeal. The respondents also argued that the trial Judge was unable to assess damages and that this Court on appeal ought not to attempt to assess damages based on the evidence before the trial Judge. However, Duffy J found that this Court was entitled to come to its own conclusions based on the material presented before it. The respondents argued that once this Court found that the appellants had suffered loss, the appropriate outcome was to refer the proceeding back to the District Court. However, Duffy J found that this ground of appeal raised nothing that met the tests for the grant of leave to appeal. Finally, the respondents argued that their private interest in the matter warranted a second appeal. However, Duffy J found that a party's alleged inability to meet the cost of a damages award did not constitute a ground warranting a second appeal.

Duffy J concluded that none of the respondents' arguments in support of the proposed grounds of appeal met the legal tests for the granting of leave to appeal. The refusal of leave to appeal was upheld.

Orders