Spencer v Bryner - [2019] NZHC 1762

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-623

[2019] NZHC 1762

IN THE MATTER OF the Unit Titles Act 2010

BETWEEN

BARRY ROBERT SPENCER and COLLEEN JOAN SPENCER

Plaintiffs

AND

VIVIENNE FRANCES BRYNER

First Defendant

TEAM WELLINGTON LIMITED
Second Defendant

AND

FARRY.CO LAW

First Third Party

Hearing: 27 June 2019

Counsel:

C M Stevens and T Mijatov for first defendant O E Jaques for first third party

Judgment:

25 July 2019

JUDGMENT OF DOBSON J

[1] The context of the issue to be determined in this judgment is described in my minute issued on 2 July 2019, in the following terms:

[1] This proceeding began as a claim by putative purchasers of a Wellington apartment for the return of a deposit paid on the purchase. It was brought against the vendor and the vendor’s real estate agent under the Declaratory Judgments Act 1908 in reliance on alleged non-performance by the vendor of a pre-settlement disclosure condition imposed under s 147 of the Unit Titles Act 2010.

[2] The defendants settled the claim by the plaintiff/purchasers. Before that occurred, the first defendant (Ms Bryner) had issued a third party notice

SPENCER v BRYNER [2019] NZHC 1762 [25 July 2019]

against Farry.Co Law (Farrys) in that firm’s capacity as her solicitors acting on the transaction. The basis for the claim against Farrys was that the firm has been negligent in not complying with the time limit for provision of pre- settlement disclosure as required by s 147 of the Unit Titles Act.

[3]Farrys filed a statement of defence denying negligence.

[4] Subsequent to the settlement achieved between the plaintiffs and defendants, Ms Bryner filed an amended statement of claim against Farrys. It pleaded the terms of the settlement achieved and sought damages for indemnification of that cost, plus damages for loss of the bargain suffered when the apartment had subsequently been re-sold at a lower price. That amended statement of claim was filed on 13 May 2019 and was served by email the same day. No statement of defence to the amended statement of claim issued against Farrys has been filed.

[5] On the basis that her amended statement of claim introduced a new cause of action, Ms Bryner’s solicitors proceeded on the premise that High Court Rule 7.77(6) required a statement of defence to be filed to the amended statement of claim within 10 working days after 13 May 2019, that is, by 27 May 2019. When none was served by that time, solicitors for Ms Bryner applied to set down her claim against Farrys for formal proof. On 21 June 2019, I scheduled a formal proof hearing for it on 27 June 2019.

[6] On 26 June 2019, counsel for Ms Bryner provided solicitors acting for Farrys with the documents she intended to rely on in pursuing the application for formal proof the following day. I accept Mr Stevens’ assurance that those documents would have been provided earlier, but…

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: [2019] NZHC 1762
Decision Date: 25 July 2019

CaseChat Overview and Summary

In Spencer v Bryner, the plaintiffs, Barry Robert Spencer and Colleen Joan Spencer, sought the return of a deposit paid for the purchase of a Wellington apartment. They brought the claim against the vendor, Vivienne Frances Bryner, and her real estate agent under the Declaratory Judgments Act 1908, alleging non-performance of a pre-settlement disclosure condition. The defendants settled the claim before it was resolved, and Bryner issued a third-party notice against Farry.Co Law, her solicitors, alleging negligence in failing to comply with the time limit for disclosure. The case proceeded to address the legal issues of whether the amended statement of claim introduced a fresh cause of action and, if so, whether it arose after the original statement of claim was filed.

The court assessed whether the amended statement of claim introduced a new cause of action by examining whether it was "essentially different" from the original claim. The court found that while there were differences in the pleadings, such as changes in statutory authority, additional facts, and the quantum of loss, these did not amount to a fundamentally different legal basis for the claim. The court held that the amended claim did not introduce a new cause of action, and thus, the defendant was not required to file a new statement of defence.

If the court were to find that the amended statement of claim introduced a new cause of action, it would need to have arisen since the original statement of claim was filed. In such a case, the defendant would only be able to file a statement of defence with the court's leave. However, the court found that no new cause of action was introduced, and therefore, the defendant was not obligated to file a statement of defence.

Ultimately, the court granted leave for the filing of the amended statement of claim and the amended statement of defence, and instructed counsel to confer on the timetable for proceeding to trial. The court reserved the issue of costs to be determined based on the substantive outcome of the case.

Orders