Singh v Rutherford - [2013] NZHC 1276

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-005301 [2013] NZHC 1276

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: 6 December 2012
[Further Submissions Received on 1 February 2013]

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

Judgment: 31 May 2013

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 31 May 2013 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 and ANOR [2013] NZHC 1276 [31 May 2013]

[1] This is the second round in this Court of what has come to be a protracted legal dispute. Mr and Mrs Singh, who were the plaintiffs in the lower Court and the appellants in this Court, brought a claim in contract for breach of warranty. The original amount of their loss came to approximately $213,000, which placed the claim within the original jurisdiction of this Court. They elected to discount the claim to $200,000 in order to bring it in the District Court. Following a defended hearing on 27 and 28 June 2011, on 29 August 2011 Judge Andrée Wiltens gave judgment finding that there had been a breach of warranty but that the Singhs were “disentitled” to make a successful claim for this breach because of their inadequate
performance of due diligence.1 On appeal to this Court, on 9 March 2012 Wylie J

found that the Singhs could rely on the breach of warranty, irrespective of their performance of due diligence, and so the appeal was allowed.2 Because Wylie J did not have sufficient materials before him to make findings “as to causation and/or quantum”, he remitted the matter back to the District Court for it to consider “whether the damages claimed by the Singhs were caused in whole or in part by the breach of warranty and if so, what damages should flow to the Singhs” for this breach.3 After hearing from the parties on the causation/damages issue, on 9 August
2012 Judge Andrée Wiltens found that Singhs had not established that the losses they claimed had in fact been incurred.4 The Judge also found that Mr Singh had “pretty much got what he bargained for ...”.5

[2] The Singhs have returned to this Court to appeal the latest dismissal by the District Court of their claim. The issue for me to determine is whether, in view of the findings of Wylie J and the subsequent hearing in the District Court, it was open to Judge Andrée Wiltens to dismiss the Singhs’ claim for the reasons set out in the judgment of 9 August 2012, and if not, to determine if the Singhs are entitled to the
damages that they seek.

1 Gurpreet and Meena Singh v Glenn Rutherford and Wendy Jolly

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: [2013] NZHC 1276
Decision Date: 31 May 2013

CaseChat Overview and Summary

The Singhs brought a claim in contract for breach of warranty against the Rutherfords and Jolly, who were the vendors of a kiwifruit and lemon orchard. The original amount of their loss came to approximately $213,000, which placed the claim within the original jurisdiction of this Court. The Singhs elected to discount the claim to $200,000 in order to bring it in the District Court. Following a defended hearing on 27 and 28 June 2011, Judge Andrée Wiltens gave judgment finding that there had been a breach of warranty but that the Singhs were “disentitled” to make a successful claim for this breach because of their inadequate performance of due diligence. On appeal to this Court, Wylie J found that the Singhs could rely on the breach of warranty, irrespective of their performance of due diligence, and so the appeal was allowed. Because Wylie J did not have sufficient materials before him to make findings “as to causation and/or quantum”, he remitted the matter back to the District Court for it to consider “whether the damages claimed by the Singhs were caused in whole or in part by the breach of warranty and if so, what damages should flow to the Singhs” for this breach. After hearing from the parties on the causation/damages issue, on 9 August 2012 Judge Andrée Wiltens found that Singhs had not established that the losses they claimed had in fact been incurred. The Singhs have returned to this Court to appeal the latest dismissal by the District Court of their claim. The issue for me to determine is whether, in view of the findings of Wylie J and the subsequent hearing in the District Court, it was open to Judge Andrée Wiltens to dismiss the Singhs’ claim for the reasons set out in the judgment of 9 August 2012, and if not, to determine if the Singhs are entitled to the damages that they seek. I have found that the District Court Judge was wrong to conclude that the Singhs had not suffered loss and his subsequent refusal to award any damages are wrong. I have found that the Singhs are entitled to recover the sum of $6,713.18 for costs incurred in mitigating their loss. The loss of profit from the reduced size of the lemon tree canopies is to be assessed in terms of the directions given in [68]. The loss of profit for the reduced size of the kiwifruit vine canopies is to be assessed in terms of the directions given in [79]. Leave is reserved to the parties to return to Court for further directions regarding the arithmetical calculation for the damages. Leave is reserved to the parties to file and serve memoranda as to costs, if agreement on costs cannot be reached. In this regard, the parties should recognise the plaintiffs have enjoyed only a partial measure of success, which is relevant to an award of costs.

Orders