Stalker v Duncan - [2020] NZHC 1484

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2018-412-000097

[2020] NZHC 1484

BETWEEN DOUGLAS BLAIR STALKER and PAMELA ROBYN STALKER
Plaintiffs

AND

PHILLIP JAMES DUNCAN

Defendant

Hearing: 25-29 May 2020

Counsel:

B M Russell and M D W King for Plaintiffs M E Parker and E L Keeble for Defendant

Judgment:

30 June 2020

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 30 June 2020 at 10.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

STALKER v DUNCAN [2020] NZHC 1484 [30 June 2020]

Table of Contents

Introduction[1]

The issues identified[4]

The Hampden farm[5]

The background facts
Details provided by Mr Duncan to his real estate agent[9]
The brochure advertisement[10]
Website advertisement[12]
The Stalkers’ farm inspections[17]
Stalkers’ offer of 15 May 2011[25]
The agreement for sale and purchase dated 6 July 2011[28]
Due diligence period[29]
The Stalkers’ subsequent use of Hampden farm [33]
The Stalkers’ discovery of discrepancies [62]

Effective hectares/effective area

The concept of effective area  [75]
Calculation of effective hectares  [91]
The grazeable/marginal land  [94]
Paper roads  [97]
Neighbouring land of Mr Nicolson  [103]
Reversion of gorse and bush  [111]
Margin of error  [115]
Assumptions in Mr Shields’ evidence  [118]

Wintered stock

The concept of wintered stock[120]
Stock wintered by Mr Duncan[128]
Proportionate allocation of stock to Home Block and Hampden farm[133]

Stock units

The concept of stock unit[145]
The oral discussions[146]
The stock units in fact carried[151]

Application of 70 tonnes’ superphosphate per year

Significance of the fertiliser representation[157]

The evidence of superphosphate application[160]

Reliance/inducement to enter the contract

Pleadings[170]
The evidence[172]
Inducement – the legal test[187]
Submissions[191]
Discussion[202]

Contributory negligence/lack of due diligence

Pleadings[207]
Defendant’s submissions[213]
Plaintiffs’ submissions[221]
The evidence[236]
Discussion[251]

Limitation period

The law [265]

Discussion [278]

Conclusion [287]

Damages
The claim[288]
The law[291]
Plaintiffs’ submissions[301]
Defendant’s submissions[304]
Discussion[313]

Interest[326]

Loss of rental[327]

Costs and disbursements [332]

Orders[333]

Introduction

[1] In 2011, the plaintiffs (the Stalkers) bought from the defendant (Mr Duncan) a farm property near Hampden in North Otago. They say that they discovered some seven years later (in the course of obtaining a valuation of the farm) that the property had been misrepresented to them at the time of sale. In particular, they say that Mr Duncan had over-represented the effective hectarage of the farm, its stock-carrying capacity and the previous application of fertiliser (superphosphate). They sue for damages.

[2] The Stalkers pleaded two causes of action. The first was for pre-contractual misrepresentation under s 35 Contract and Commercial Law Act 2017 (CCLA). The second was for breach of ss 9, 13 and 14 Fair Trading Act 1986 (FTA). For both causes of action, the Stalkers relied on the same underlying facts. For the Stalkers, Mr Russell at trial withdrew reliance on the FTA cause of action. He recognised that the FTA claim, in the circumstances of this case, added nothing to the misrepresentation claim.

[3] The case raises mainly factual issues but some legal issues.…

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 Stalker v Duncan

Details

AGLC: Stalker v Duncan [2020] NZHC 1484
Case: [2020] NZHC 1484
Decision Date: 30 June 2020

CaseChat Overview and Summary

The plaintiffs, Douglas Blair Stalker and Pamela Robyn Stalker, brought an action against the defendant, Phillip James Duncan, for damages arising from misrepresentations made in the sale of a farm property near Hampden in North Otago in 2011. The plaintiffs alleged that Mr Duncan over-represented the effective hectarage of the farm, its stock-carrying capacity, and the previous application of fertiliser (superphosphate). The case raised mainly factual issues but also some legal issues, including the standard of reliance and the measure of damages. The court found that the plaintiffs had been induced to enter into the contract by misrepresentations made by the defendant and his agent, and that they were entitled to damages under the Contract and Commercial Law Act 2017. The court assessed the damages at the date of trial, rather than the date of breach, due to the plaintiffs' lack of opportunity to repair the damage they suffered. The court also found that the plaintiffs had contributed to their loss to a modest extent due to their failure to obtain fertiliser records, but this was not sufficient to significantly reduce the damages awarded. The court ordered the defendant to pay the plaintiffs damages in the sum of $515,250, and reserved the question of costs and disbursements.

Orders