Smith v Nathan - [2010] NZCA 265

IN THE COURT OF APPEAL OF NEW ZEALAND
CA141/2010
[2010] NZCA 265
BETWEENGEOFFREY STEPHEN SMITH AND CAROLYN SMITH

Applicants

ANDMILES HUNTER NATHAN, JAMES DENNIS TAIT AND MICHAEL GERARD CURTIS

First Respondents
ANDMILES HUNTER NATHAN AND MARY NATHAN

Second Respondents

Hearing:15 June 2010

Court:William Young P, Ellen France and Randerson JJ
Counsel:S C Price and J K Stewart for Appellants

M J Fisher and K S Muston for Respondents

Judgment:24 June 2010 at 3 pm

JUDGMENT OF THE COURT

A We dismiss the application for leave to appeal.
BWe direct that the applicants pay to the first respondents costs for a standard application on a Band A basis and usual disbursements.

REASONS OF THE COURT
(Given by William Young P)
[1]        In issue is an application for special leave to appeal against a judgment delivered by Wylie J delivered on 16 November 2009[1] dismissing an application for review of a decision of an Associate Judge declining to strike out a cause of action.
[1]      Nathan v Smith HC Auckland CIV 2007-404-253, 16 November 2009.
[2]        The case arises out of a sale of a house developed by Mr and Mrs Smith. They sold the house under an agreement for sale and purchase dated 28 December 2000. The purchasers were Mr and Mrs Nathan “and/or nominee”. The agreement contained warranties and undertakings as to the construction of the house. When the transaction was settled (on 23 January 2001), the transfer was to the trustees of a trust associated with Mr and Mrs Nathan. Their identities were disclosed in the memorandum of transfer and notice of change of ownership. This was sent by Mr and Mrs Nathan’s solicitors to Mr and Mrs Smith’s solicitors before settlement.
[3]        The trustees and Mr and Mrs Nathan allege that the house was not weather tight. They seek damages to recover repair and reconstruction costs and issued proceedings on 23 January 2007 (ie the last day of the limitation period for contractual claims[2]) against Mr and Mrs Smith and others. In these proceedings the trustees are the first plaintiffs and Mr and Mrs Nathan are the second plaintiffs. As against Mr and Mrs Smith, they alleged breach of the warranties in the agreement for sale and purchase, and they also claimed in tort. The strike out issue is solely in relation to an aspect of the contractual claims.
[2]      Limitation Act 1950, s 4.
[4]        A complicating feature of the case is that there is more than one basis upon which Mr and Mrs Nathan and the trustees might be able to pursue a contractual claim.
(a)In the statement of claim as originally filed, the trustees relied on the Contracts (Privity) Act 1982 but in a later amended statement of claim, they (strangely to our way of thinking) did not persist with that pleading. They now wish to resuscitate this claim. Although their entitlement to do so may be challenged, it is yet to be established that they cannot do so.
(b)Mr and Mrs Nathan have also…

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 Smith v Nathan

Details

AGLC: Smith v Nathan [2010] NZCA 265
Case: [2010] NZCA 265
Decision Date: 24 June 2010

CaseChat Overview and Summary

The case of Smith v Nathan involves an application for special leave to appeal against a judgment dismissing an application for review of a decision of an Associate Judge. The case stems from the sale of a house by Geoffrey Stephen Smith and Carolyn Smith to Miles Hunter Nathan, James Dennis Tait, and Michael Gerard Curtis, with the latter two acting as trustees for the former two. The buyers, Nathan and the trustees, allege that the house was not weather tight and seek damages for repair and reconstruction costs. The primary legal issue before the Court of Appeal was whether the applicants should be granted special leave to appeal the judgment. Specifically, the Court had to determine whether the prior interlocutory judgment by Wylie J could give rise to an issue estoppel that would prevent the applicants from arguing the same issue in the substantive proceedings.

The Court of Appeal, comprising William Young P, Ellen France, and Randerson JJ, considered whether Wylie J's conclusion that there was an arguable case on the issue of notice of assignment constituted an issue estoppel. The Court found that Wylie J's judgment was merely persuasive and not binding or conclusive, and therefore did not create an issue estoppel. Additionally, the Court noted that the legal issue involved in the case was largely of historical interest due to the repeal of Section 130 of the Property Law Act 1952. Given that the outcome of a potential appeal on this issue would not necessarily exclude the applicants from the substantive action and that the trial was scheduled for the following year, the Court found it inappropriate to grant leave to appeal. Consequently, the application for special leave to appeal was dismissed, and the applicants were directed to pay costs to the first respondents.

Orders