Terra Firma Resources Limited v Hendry
[2024] NZHC 806
•15 April 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2022-419-000090
[2024] NZHC 806
BETWEEN TERRA FIRMA RESOURCES LIMITED
Plaintiff
AND
CHRISTINE ELIZABETH HENDRY and HAROLD LEONARD GASKELL
Defendants
Hearing: 10, 11 and 12 October 2023 Appearances:
T M Braun and J R Field for Plaintiff P A Depledge for Defendants
Judgment:
15 April 2024
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 15 April 2024 at 2:30 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………..
Counsel/Solicitors:
Braun Bond & Lomas Limited, Hamilton Brook Law, Hamilton
P A Depledge, Hamilton
TERRA FIRMA RESOURCES LTD v HENDRY [2024] NZHC 806 [15 April 2024]
Table of Contents
Relevant background [6]
The Property [6]
The Gaskells list the Property with HomeSell [11]
TFR becomes aware of the Property [16]
First visit by Smith family members to the Property [20]
Follow up to first visit [24]
Second visit [28]
TFR makes offer [29]
The agreement for sale and purchase [33]
The Gaskells make counteroffer [35]
Requests for legal advice and LIM [38]
Unconditional date brought forward and settlement achieved [40]
Gaskells offer to transfer Lot 1 at no consideration [43]
Gaskells ask Waikato District Council about Lot 1 [47]
Gaskells seek to withdraw offer to transfer Lot 1 [49]
Gaskells contact TFR [51]
Questions for decision [59]
Did the parties agree that Lot 1 was to be included in the sale of the Property?
[60]
What was said and agreed at the 3 April 2021 visit? [61]
What happened in relation to the rates demand? [73]
Was the omission of Lot 1 from the ASP a mistake? [80]
Should the mistake be rectified? [92]
Contract and Commercial Law Act 2017 [92]
Does the CCLA apply? [100]
Should the Court exercise its discretion to grant relief? [107]
Other causes of action [114]
Result and orders [115]
Costs [117]
[1] The parties to this proceeding are in dispute about what they intended to sell and buy when they entered into an agreement for the sale and purchase of land (the ASP) at 181 Tregoweth Lane on the outskirts of Huntly (the Property).
[2] The plaintiff, Terra Firma Resources Ltd (TFR), the purchaser, says that it was the parties’ common intention that the ASP was to include both Lot 1 and Lot 2, which make up the land owned by the defendants at Tregoweth Lane, even though the ASP referred only to Lot 2.1 In the alternative, it says the defendants engaged in misleading or deceptive conduct in terms of the Fair Trading Act 1986 or represented to TFR that the property being sold included both Lots.
[3]TFR seeks:
(a)orders rectifying the ASP to include Lot 1 and requiring the transfer of Lot 1 to TFR on the basis of common mistake or, in the alternative, unilateral mistake, as provided for in s 28 of the Contract and Commercial Law Act 2017, or, as a further alternative, rectification as provided for under the common law; or
(b)an order under s 43 of the Fair Trading Act varying the ASP to include Lot 1; or
(c)damages in an amount to be quantified.
[4] The defendants, Harold (Harry) Gaskell and Christine Hendry-Gaskell, who are husband and wife and have owned and lived on the Property for many years, say it was only ever their intention to sell Lot 2 and that they had wanted to keep Lot 1 for the use of their daughter.2 They say there was no mistake and no misleading or deceptive conduct and that, even if the Court should find otherwise, no order should be made requiring the transfer of Lot 1 to TFR.
1 For the purposes of this judgment, the term “the Property” includes both Lot 1 and Lot 2.
2 Although the certificates of title, the ASP and documents filed in the proceeding named Christine Hendry as an owner of the Property, in accordance with her wishes expressed at the hearing, I refer to Ms Hendry as Mrs Gaskell.
[5] At the core of the dispute is what the parties said to each other when Lincoln Smith, a director and shareholder of TFR, visited the Property with members of his family on 3 April 2021 and met with Mr and Mrs Gaskell. No third parties were present, even though the defendants had marketed the Property through HomeSell Ltd, a real estate agency. In accordance with standard HomeSell arrangements, Andrea Forsyth, the defendants’ HomeSell agent, was not present at the meetings between TFR and the defendants, even though Ms Forsyth was the defendant’s agent in negotiating and finalising the terms of the sale and purchase. Nor was Ms Forsyth involved in preparing the material used in the marketing of the Property.
Relevant background
The Property
[6] The Property is a large area of rural land south of Huntly, located east of the Waikato River, State Highway 1B (formerly State Highway 1) and the North Island Main Trunk railway line. Tregoweth Lane runs next to and generally parallel with the railway line, the highway and the River.
[7]There is one house on the Property.
[8] Apart from an indented section in the north-west corner of the Property, the Property is generally rectangular in shape, although the western boundary on Tregoweth Lane has a gentle curve that bows in towards the Property. The western part of the property next to the railway line is generally flat. However, the majority of the Property, including the area where the house is located, is elevated. The house, which has two patios on the western side, looks out over the land towards and beyond the River. There is also a large workshop located downhill and east of the house.
[9] The bulk of the Property is made up of Lot 2, which comprises 14.3760 hectares (more or less). The Legal Description is Pt Lot 2, DP 64649 South Auckland. The Identifier for Lot 2 is SA52A/52 South Auckland. The house is located on Lot 2, mid-way between the eastern and western boundaries, in the northern half of the Property.
[10] Lot 1, which is a small rectangular section on the flat land adjacent to Tregoweth Lane, comprises 1335 square metres (more or less). The legal description is Lot 1, DP 35743 South Auckland. The Identifier for Lot 1 is SA23B/1355 South Auckland.
The Gaskells list the Property with HomeSell
[11] On 8 March 2021, Mr and Mrs Gaskell signed a HomeSell Advertising Contract and Booking Form for the Property. The address was given as 181 Tregoweth Lane, Huntly. The legal description and size of the property were not entered into the form. However, among the details entered in handwriting was:
- large dble garage with storage
- 5 Bay shed, concrete floor workshop 3 phase power bay
- 7 paddocks + large covered secondary workshop
[12] In March 2021, Ms Forsyth prepared a Comparative Market Analysis (CMA) of 181 Tregoweth Lane. The CMA, dated 8 March 2021, included an aerial photograph with lines outlining the property boundaries. The boundaries were for Lot 2 only and did not include Lot 1. The Property Description said the land area comprised 14.207 hectares. The CMA recommended a selling range of $1,450,000 to
$1,550,000 and recommended a list price of $1,485,000.
[13] Ms Forsyth did not prepare the outline boundaries on the aerial photograph and does not know who did.
[14] On 16 March 2021, the Gaskells signed an Agreement for Negotiation Services in relation to 181 Tregoweth Lane with Ms Forsyth, who had signed the agreement on 9 March 2021 (the negotiating agreement). The negotiating agreement stated that the Legal Description of the property was Pt 2 Lot 2 DPS 64649. It stated the land area as comprising 14.2069 hectares. Ms Forsyth and the Gaskells did not meet before signing the negotiating agreement.
[15] On 24 March 2021, HomeSell prepared marketing material for the sale of the Property. This material was prepared by HomeSell’s marketing team without the involvement of Ms Forsyth.
TFR becomes aware of the Property
[16] According to Lincoln Smith, in late March 2021, he became aware that the Property was for sale through a listing on TradeMe, which he found as part of a routine search for land with development potential. Lincoln Smith says he was interested in the Property because of its size and its proximity to nearby industrial properties, which was attractive for future development purposes, and because the southern boundary adjoined an historic quarry which had been mined up to that boundary. He says one of the possible uses he was considering for the Property was to turn part of it into a quarry to be operated by another company, Terra Firma Mining Ltd, which he and his wife, Lucy Smith, own.
[17] The TradeMe listing described the Property as being superbly located and the home as having expansive views to the Waikato River and farmland. The listing noted that the seller was HomeSellAssist but advised that persons wishing to view the property should contact the owners, “Harry and Christine”, and provided a cell phone number. It also advised that Ms Forsyth of HomeSellAssist had been instructed to act on the owners’ behalf and that persons interested in making an offer should contact Ms Forsyth on the provided cell phone number.
[18] A video promoting the Property was also posted on HomeSell NZ’s Facebook page. The Facebook video and caption had a similar description of the Property and home to that on the TradeMe listing, advised that viewing was by appointment and provided a link to the HomeSell website for price and further details. The Facebook video included a panoramic photograph of the Property looking down from north-east to the south-west, with a red line, in a generally trapezoid shape, but with an indented notch in the north-west corner, indicating the boundaries to the Property. Apart from the notch, the western boundary was shown as a straight line which, as it tracked south, ceased to run parallel to the railway line, State Highway and river. There was nothing
to indicate that the Property was made up of two lots or to indicate the location of Lot 1.
[19] The listing on the HomeSell website comprised the same video clip with aerial views of the Property and on the ground views of the house, garage and workshop. It also included the same panoramic photograph of the Property as in the Facebook video, with the same trapezoid-shaped red-line indication of the boundaries.
First visit by Smith family members to the Property
[20] Whether on the basis of the TradeMe listing or one of the other listings, it is not in dispute that Lincoln Smith made an appointment to visit the Property on 3 April 2021 and did so that day, along with his parents, Craig and Louise Smith, and his sisters, Rebecca Bruning and Rachel Roberts (the Smiths).3
[21] It is common ground that, when the Smiths arrived, Mr and Mrs Gaskell gave them an information pack which included:
(a)A sheet containing an aerial photograph of the site marked up with the two titles, with a legend stating the legal descriptions of Lot 1 and Lot
2. This sheet appears to have been taken from a report prepared in relation to a possible subdivision of the Property. Lincoln Smith later drew lines on the photograph to explain to the other family members his ideas for how the property might be developed.
(b)A copy of the same aerial photograph that was in the Facebook video and on the HomeSell website, with a trapezoid-shaped boundary marking, but with the notation, “Boundary Lines are Indicative Only”. As Ms Forsyth confirmed in her evidence, this photograph and the boundary markings were produced by HomeSell’s marketing team.
3 While Lincoln Smith did not give a date for this visit and was questioned on the basis that it took place on 4 April 2021, it became clear during the hearing and was accepted by both counsel that the visit must have taken place on Saturday, 3 April 2021.
(c)A HomeSell brochure which described the key features of the Property, particularly of the house, and which listed:
(i)various additional features including that:
· the land comprised seven paddocks with a five-bay shed with concrete floor, workshop and three-phase power;
· there was an independent registered valuation of
$1,500,000;
(ii)the price as being “Enquiries over $1,488,000”;
(iii)the land area as 14.2069 hectares; and
(iv)the legal description as being PT Lot 2 DPS 64649.
The brochure also stated that if people wished to make an offer on the Property, they should contact Ms Forsyth and she would provide the necessary forms and facilitate the negotiation process.
[22] The parties have different recollections about whether the visit lasted more than an hour, whether Mr Gaskell was visibly unwell and whether the visitors made a lot of noise. However, it is common ground that the Smiths were given a tour of the house by Mrs Gaskell, that they gathered outside the house on one of the patios and looked out over the land towards the river, that Mr Gaskell and Lincoln Smith drove down to the workshop where they were joined by Craig Smith and Ms Bruning (who had walked down) and that, when they returned, the Smiths and the Gaskells regathered at the top of the driveway. It is also common ground that Mr Gaskell discussed various features of the Property and what he had done on the Property, including the construction of a tyre drain and a nearby clean fill site.
[23] It is also common ground that Lot 1 was mentioned. However, there is no agreement on how much Lot 1 was discussed or on what was said about Lot 1. In brief, Lincoln Smith and his family who visited the Property that day say that there
were a number of exchanges about Lot 1 and that Mr and Mrs Gaskell made it clear that Lot 1 was part of the Property and was being sold. Mr and Mrs Gaskell say that there was little discussion about Lot 1 but also say that Mr Gaskell made it clear that Lot 1 was not part of the sale. I discuss the differences in the evidence below.
Follow up to first visit
[24] At 11.00 am the following day, 4 April 2021, which happened to be Easter Sunday, Ms Forsyth emailed Lincoln Smith. The email thanked Lincoln Smith for his interest in the property, enclosed various documents in accordance with protocols of the Real Estate Authority (REA) and set out various questions to answer if making an offer. The questions included whether he was a New Zealand citizen, the price offered, the deposit, any conditions, proposed unconditional date and proposed settlement date. The email also attached what was described as “a recent copy of the property Title” and a property disclosure form which Lincoln Smith was asked to sign, date and return. The title attached was for Lot 2.
[25] About half an hour later, but before she had seen Ms Forsyth’s email to Lincoln Smith, Lucy Smith emailed her husband and others in the family in which she attached a page of the District Plan showing notations on the Property, pointed out the presence of a Significant Natural Area (SNA) in the southwestern corner of the Property and the presence of a Maaori Site of Significance (MSoS) — a pā site. She noted the potential planning implications of these designations for earthworks and subdivision consents and the likely challenge to obtaining consent to quarry the MSoS. The page of the District Plan showed Lot 1 in red, differentiated from Lot 2.
[26] Later that afternoon, Lucy Smith sent a further email to Lincoln Smith and the other family members in which she noted that she had looked at “the title for this property”, which she attached, and listed a series of comments. The first comment was:
- Need to request title for the small parcel adjacent to the road, which is separate.
[27]At the conclusion of that email, Lucy Smith wrote:
I will contact our solicitors on Tuesday to get them to check out the bulk of the stuff, but the real estate agent should provide us with the second title. We can request it from the agent when we provide all the other paperwork and put in an offer, subject to solicitor’s approval.
Second visit
[28] On 5 April 2021, Lincoln Smith made a further visit to the Property, accompanied by his father. Lincoln Smith says the two men had a decent walk around the Property, inspected the tyre drain, drove along the western boundary and looked at the southern boundary. It is common ground that they were not accompanied by Mr or Mrs Gaskell for that part of the visit, but the visit occurred and that the Smiths and Gaskells had a further conversation. Lincoln Smith says it was after that visit that TFR decided to put in an offer.4
TFR makes offer
[29] At 8.45 am on 6 April 2021, Lincoln Smith sent Ms Forsyth an email enclosing “our offer for 181 Tregoweth Lane, Huntly.” The offer was handwritten in a form headed “EXPRESSION OF INTEREST” that had the HomeSell logo in the bottom right-hand corner. Lincoln Smith says this was one of the documents emailed to him by Ms Forsyth on 4 April 2021.
[30]The document included the following details:5
Address of property: 181 Tregoweth Lane, Huntly
Legaldescription: Pt Lot 2 DPS 64649 Lot 1 DP 35743
Price offered: $1,495,000
Special conditions: Solicitor / legal approval
4 It is common ground that Lincoln Smith made a third visit to the property with his wife, Lucy Smith, and their two children. On that visit, they met with Mr and Mrs Gaskell, were shown the house and had a discussion about the future of the alpacas on the property. The date of that visit is uncertain but it appears to have been after TFR offered to purchase the Property on 6 April 2021.
5 According to Lincoln Smith, Lucy Smith entered the address and legal description in the Expression of Interest and he entered the price and the conditions.
Proposedunconditional date: Two weeks following acceptance of offer
Proposed date of settlement/possession: One month after
unconditional date.
[31] At 9.25 am on 6 April 2021, Ms Forsyth emailed Lincoln Smith thanking him for his interest in the Property and for emailing through his expression of interest form. She said, “in order to complete a sale and purchase agreement offer please answer the below questions and email return to me.” The email then repeated the text of the email Ms Forsyth had sent Lincoln Smith on 4 April 2021 after the first visit, including the statement that she was attaching a recent copy of the property title and attached a copy of the title for Lot 2.
[32]Also on 6 April 2021, the following occurred:
·At 10.07 am, Lucy Smith emailed Ms Forsyth requesting a copy of the title to Lot 1. The email began:
Just following up on the package of information you sent Lincoln – could you please send the COT for the smaller property?
·At 10.17 am, Ms Forsyth emailed Lucy Smith advising that she had sent the request to HomeSell and was waiting to hear.
·At 10.33 am, Ms Forsyth emailed Lincoln Smith attaching a draft ASP, together with a multi-offer form.
·At 11.43 am, Ms Forsyth emailed Lucy Smith attaching a copy of the title to Lot 1. The email began:
§As requested COT (which looks part-cancelled) for 181 Tregoweth Lane, Huntly.
§Legal advice recommended
·Later that day, Lincoln Smith signed and returned the ASP to Ms Forsyth. He did not amend the draft prepared by Ms Forsyth.
The agreement for sale and purchase
[33] Ms Forsyth’s email to Lincoln Smith forwarding the draft ASP was headed “Draft S & P 181 Tregoweth Lane Huntly -& Multi offer form”. The email stated that Ms Forsyth had drafted and attached the draft ASP “for the above property” for Lincoln Smith’s perusal. It advised Lincoln Smith to seek legal advice as to goods and services tax implications and stated that a multi-offer form was attached because there was currently a signed offer for the Property from another party. The email summarised the details of the TFR offer, being price, deposit, and the dates of unconditionality and settlement, and recorded the conditions of the offer. No reference was made to the title to the Property. The email stated in bold type:
Please feel free to have your solicitor review the agreement prior to any signing.
[34]For present purposes, relevant details of the draft ASP were:
Address: 181 Tregoweth Ln, Huntly, Waikato District
Area (more or less): 14.2069 ha
Legal description: Pt Lot 2 DP S64649
Record of title: SA52A/52
Purchase price: $1,495,000
Deposit:10 per cent of purchase price payable upon agreement being declared unconditional
Settlement date: 28 May 2021 or as mutually agreed
Conditions:Land Information Memorandum (LIM) required
Solicitor’s approval, to be satisfied within 10 working days of the date of the agreement.
The Gaskells make counteroffer
[35] On 8 April 2021, Ms Forsyth emailed Lincoln Smith attaching a counteroffer from the Gaskells. The only change to the ASP signed by Lincoln Smith was to the purchase price, which was increased to $1,505,000.
[36] Later that day, Lincoln Smith accepted the counteroffer by initialling the amended price and the amended date, 8 April 2021.
[37] At 9.17 am on 9 April 2021, Ms Forsyth sent an email to Mrs Gaskell; the defendants’ solicitor, Jeremy Brook of Brook Law; Lincoln Smith; and the solicitors for TFR, DTI Lawyers, attaching the signed and dated ASP.
Requests for legal advice and LIM
[38] Just before midday on 9 April 2021, Lucy Smith emailed Hayley Willers of DTI Lawyers and advised that TFR had been successful in its bid and had a sale and purchase agreement with the vendor for 181 Tregoweth Lane. The email noted that the ASP was conditional on a LIM report, which she would be seeking from the Waikato District Council. The email stated that the two titles for the property were attached and listed issues the purchasers were concerned about or did not yet understand. In relation to one of those issues, the email stated that the purchasers wished to continue the historic quarry on the subject land.
[39] A few minutes after sending the above email, Lucy Smith applied by email to the Waikato District Council for a LIM enclosing the relevant form. Under “Legal Description”, “PT Lot 2 DPS 64649” was entered. Fifteen minutes later, Lucy Smith sent a follow up email attaching the title for Lot 1 for “the very small parcel (0.1 ha) that is a part of this address”. The Council replied that a further fee of $330 would be required because, although the two properties were rated as contiguous properties, they were separate properties. In the light of this advice, Lucy Smith decided not to proceed with the LIM request for Lot 1.
Unconditional date brought forward and settlement achieved
[40] On 15 April 2021, Mr Gaskell left a voicemail message on Lincoln Smith’s phone asking if the unconditional date could be brought forward from 22 April 2021 to 20 April 2021. Mr Gaskell’s voicemail did not propose any consideration for this amendment.
[41] On 20 April 2021, Brook Law emailed DTI Lawyers to confirm that the Gaskells had agreed to reduce the deposit to $50,000 if the ASP was declared unconditional that day. DTI Lawyers replied that afternoon confirming that the LIM condition was satisfied and the purchaser solicitor approval condition was waived and, therefore, the conditions for TFR were satisfied.
[42] On 28 May 2021, settlement of the sale and purchase took place as provided for in the ASP.
Gaskells offer to transfer Lot 1 at no consideration
[43] On 15 July 2021, after receiving a rates invoice for Tregoweth Lane, Mr Gaskell telephoned Mr Brook and asked why he still had to pay rates. Mr Gaskell told Mr Brook there was another title involved, which was the first time Mr Brook had learned of Lot 1.
[44] As a result of that conversation, by letter dated 27 July 2021 and sent by email on 28 July 2021, Mr Brook wrote to DTI Lawyers. Relevant passages of the letter stated:
Our client has now informed us that the property your client purchased had a second title contained in Record of Title SA23B/1335 which was not included in the agreement as prepared by agent but was part of the property as viewed by your client.
We therefore attach a copy of Record of Title SA23B/1335 and to complete matters we therefore suggest that the property be transferred to your client at no consideration.
…
We would suggest a simple sale and purchase agreement be prepared on the basis that the title form part of the original sale and was intended to be transferred at that time.
[45] On 30 July 2021, Lucy Smith emailed Mr Brook advising that TFR were happy for the title for Lot 1 to be included but did not consider it should incur “additional expenses resulting from this omission (over and above what we would have incurred should it have been included in the first place).”
[46] On 3 August 2021, Ms Willers emailed Mr Brook asking for confirmation of the Gaskells’ position regarding costs.
Gaskells ask Waikato District Council about Lot 1
[47] On 6 August 2021, Mr or Mrs Gaskell lodged a request with the Waikato District Council for full details about Lot 1.6
[48] It appears this request led to a meeting between Mrs Gaskell and/or Mr Gaskell and Naomi Robertson of the Waikato District Council. Following that meeting, Ms Robertson sent an email to Mrs Gaskell summarising the District Plan building rules applicable to Lot 1.
Gaskells seek to withdraw offer to transfer Lot 1
[49] On 13 August 2021, Mr Brook emailed Ms Willers and advised that, in light of her client’s correspondence about payment of costs, his clients were not minded to proceed with the transaction and the offer to transfer Lot 1 at no consideration was withdrawn.
[50] On 31 August 2021, Ms Willers emailed Mr Brook noting that the title in question was included with the sale of 181 Tregoweth Lane and had not been transferred on settlement due to an error in the agreement. Therefore, DTI Lawyers considered that the offer to complete the transaction could not be withdrawn. The email asked that documentation be prepared to complete the transfer.
Gaskells contact TFR
[51] On 6 September 2021, Mr Gaskell left a voicemail on Lincoln Smith’s phone. In the message, Mr Gaskell said there seemed to be a lot of confusion going on. He said the ASP clearly stated 14.2069 hectares, which was Lot 2. He also said it was never mentioned that the second title was being sold and that, while there had been a mention of the second title, it had not been for sale, as the documents made clear.
6The request was lodged in the name of Mr Gaskell, but the email address provided, @gmail.com, is that used by Mrs Gaskell.
[52] On 7 September 2021, Mrs Gaskell sent a lengthy email to Lincoln Smith. Among other things, the email recorded the Gaskells’ disappointment that they had found, “months down the line” that Lincoln Smith was under the impression that Lot 1 had been included in the recent purchase. The email stated that Lot 1 was never for sale and that there had been no mention of Lot 1 in any of the advertising material. The email said:
You were told the property had 2 titles. not that we were selling both.
[53] Mrs Gaskell’s email said it was well known that Mr Gaskell was ill and that was the reason they were selling. She also said Mr Gaskell’s health had since declined.
[54] On 8 September 2021, Mrs Gaskell sent a further email to Lincoln Smith which essentially repeated the email of the previous day. She said Mr Gaskell was becoming quite confused at times and it was best not to contact him. The email went on to state:
Lot 1 was kept aside for our daughter, that is why I know Harry would not of said it was for sale. He simply stated that there were 2 ti[t]les. However, we now feel obligated to offer Lot 1 For Sale, at an agreed price, you have 2 weeks to show your interest.
[55] On 9 September 2021, Lincoln Smith emailed Mrs Gaskell. The email stated that TFR’s understanding that Lot 1 had been included in the purchase was based on several factors including the documents the Smiths had been provided with and their correspondence with the agent. The email also said:
More importantly, in our discussions with Harry as he showed us around the property he was very clear that the land included both lots. All our family members who were present at this viewing remember distinctly that the land had two titles but both were included in the sale. At the time of these discussions, we were not aware that the small parcel of land was not stated in the advertising document. We spoke with Harry at some length about the small parcel and it was our clear understanding that it was included. We questioned Harry on when and why it had been subdivided off. Harry could not clarify the history but was adamant that it was part of the land being sold. We spoke further about this as he was explaining the tyre culvert he had earlier installed that drains towards the small lot. The small lot forms part of one of the front paddocks.
[56] The email said that the small lot was an integral part of TFR’s plan for the property and, if it had been aware that it was not included, it would definitely have re-
evaluated the decision to purchase. The email then listed and attached relevant documents.
[57] Mrs Gaskell replied by email dated 11 September 2021. Among other things, she implied in her email that the issue of Lot 1 had arisen after a lawyer for TFR called Mr Brook to complain about a missing title. The email said Mr Brook had panicked and had called Mr Gaskell, who had made things worse.
[58]Despite further email exchanges, the parties were not able to reach agreement.
Questions for decision
[59]In essence, the Court must decide three questions:
(a)Did the parties agree that Lot 1 was to be included in the sale of the Property?
(b)If so, was there a mistake in the ASP?
(c)If there was a mistake, should it be rectified or, if not, is there some other basis on which the Court should intervene?
Did the parties agree that Lot 1 was to be included in the sale of the Property?
[60] Central to this question is what was said and agreed by the parties when the members of the Smith family visited the Property on 3 April 2021. However, there is also other evidence that predates and postdates that visit that bears on this question.
What was said and agreed at the 3 April 2021 visit?
[61] In his evidence in chief, Lincoln Smith said that, when the Smiths and the Gaskells stood on the patio looking out towards the river, Mrs Gaskell said the land being sold was everything they could see. He also said Mr Gaskell was more specific and went through the parts of the Property he had worked on, including the paddocks which included Lot 1. Lincoln Smith also said that, when the group had reassembled at the top of the driveway, Mr Gaskell had pointed to the western and southern
boundaries of the Property and had said the western boundary followed the road edge southward to the adjacent property and included all the land in the paddocks parallel to Tregoweth Lane. Lincoln Smith also says Mr Gaskell could not recall when Lot 1 had been subdivided but had said that was not important because everything within the western boundary was being offered for sale.
[62] Lincoln Smith’s evidence was corroborated with respect to most of the above details by the evidence of his father, Craig Smith, and the evidence of his sister, Ms Bruning. Both recalled Mrs Gaskell gesturing with her arm and saying words to the effect that everything out there to the fence was included. They also recalled that, when asked when and why the Property had been subdivided, Mr Gaskell had said he could not recall but had said Lot 1 was included in the sale.
[63] When it was put to him in cross-examination that, based on the evidence, it was more likely that Mr and Mrs Gaskell had referred to two lots but had told him that Lot 1 was not for sale, Craig Smith disagreed and said they had gone to the Property expecting to find a single property and that it was only in discussion that they realised or were told that it comprised Lot 1 and Lot 2. That answer was consistent with Lincoln Smith’s evidence that, prior to the visit on 3 April 2021, he had been quite unaware the Property had two titles.
[64] The evidence of Lincoln Smith, Craig Smith and Ms Bruning is also consistent with the two aerial photographs that were included in the information pack that was handed to them at the beginning of the visit: the sheet with the aerial photograph on which both lots were marked and the photograph made by the HomeSell marketing team which showed a straight line for the western boundary and appeared to include Lot 1, even if the line did not stay parallel to the railway line, the State Highway and the river.
[65] Lincoln Smith’s account of what was said about Lot 1 during the visit is also consistent with what he said in his email of 9 September 2021 to Mrs Gaskell, some five months after the visit. Lincoln Smith was not challenged during cross- examination as to the honesty or accuracy of his evidence or the account on his email of 9 September 2021. The questions of Mr Depledge, counsel for the Gaskells, were
directed at whether the documentary record was consistent with Lincoln Smith’s assertions that the Gaskells had told him during the visit that Lot 1 was included in the sale.
[66] In summary, the evidence of Lincoln Smith, Craig Smith and Ms Bruning was cogent, consistent and credible and was not seriously challenged other than by the fact that the Gaskells denied that they had said that Lot 1 was included in the sale.
[67] In his evidence in chief, Mr Gaskell said that, at one point, he told the Smiths there was another small lot but that it was not for sale. He also said that no questions were asked about that lot. His evidence was corroborated by Mrs Gaskell who said they had decided only to sell Lot 2 and had decided to keep Lot 1 because their daughter had suffered from an accident and had been left disabled. Mrs Gaskell said that, when the group was standing on the patio, Mr Gaskell had raised his arm and said that they had another section over there but it was not for sale. Mrs Gaskell agreed that Lot 1 was mentioned but said the Smiths were never told it was for sale. She could not remember saying everything they could see was for sale. Mrs Gaskell said that was not something she would have said. She also said that Lot 1 was not mentioned again after Mr Gaskell had first raised it and that the Smiths had not asked any questions about Lot 1 during the visit.
[68] Mrs Gaskell’s evidence with respect to what was said during the visit is also generally consistent with what she said about the visit in her emails of 7 and 8 September 2021 to Lincoln Smith. However, for a number of reasons, the evidence of Mr and Mrs Gaskell is not as cogent and credible as that of the Smiths.
[69] First, their evidence provides no basis for explaining what followed in the three days after the visit — the steps taken by Lucy Smith to obtain the title to and further information about Lot 1 and, most importantly, an offer by TFR, contained in the Expression of Interest emailed to Ms Forsyth on 6 April 2021, to purchase Lot 1 and Lot 2. As noted above, both Lincoln Smith and Craig Smith say that they knew nothing about the Property being comprised of two lots until that visit. There was nothing in the TradeMe listing, the Facebook post or the HomeSell website listing to indicate the Property had two lots. It follows that the Smiths must have learned about
the two titles at the 3 April 2021 visit. It is also inherently unlikely that they would have made an offer to purchase both lots if Mr Gaskell had told them Lot 1 was not for sale.
[70] Secondly, the Gaskells’ account provides no basis for explaining what happened in July 2021 when Mr Brook wrote to DTI Lawyers offering, on the Gaskells’ behalf, to transfer Lot 1 to TFR for no consideration. I discuss below the differing versions about what prompted Mr Brook’s letter of 27 July 2021. However, even leaving that evidence aside, there is no credible reason for Mr Brook to have made that proposal if the Gaskells genuinely intended to sell only Lot 2 and genuinely believed that the sale and purchase that took place on the basis of the ASP had been limited to Lot 2.
[71] Thirdly, when giving evidence Mrs Gaskell said that, when the Gaskells had previously marketed the Property with Harcourts in late 2020 and on TradeMe in early 2021, they had intended to sell both lots. The valuation of the property at $1,500,000, referenced in the HomeSell brochure handed out in the information pack, was a valuation prepared on 14 December 2020 by Accurate Valuers Ltd. Mrs Gaskell accepted that the valuation included Lot 1, with an apportioned value of $110,000 included in the $1,500,000 total value of the Property. Since those earlier marketing efforts had been unsuccessful, it is inherently unlikely that the Gaskells would have sought to obtain the same overall price in April 2021 without including Lot 1 in the sale when the valuation had been completed less than four months previously.
[72] For these reasons, I am satisfied, on the balance of probabilities, that Mr and Mrs Gaskell did tell the Smiths that Lot 1 was to be included in the sale. Accordingly, I conclude that Mr and Mrs Gaskell were not being truthful in the evidence they gave before the Court. That conclusion is reinforced by the evidence they gave about subsequent events, particularly about what happened in July 2021 when Mr Brook wrote to DTI Lawyers offering to transfer Lot 1 to TFR for no consideration following receipt of the rates demand.
What happened in relation to the rates demand?
[73] The evidence of Mr Brook about what happened in relation to the rates demand was straightforward and clear. Mr Gaskell had called him on 15 July 2021 because he had received a rates invoice and was wondering why he still had to pay rates. Mr Gaskell had told Mr Brooks there was another title involved, namely Lot 1 — which Mr Brook verified from an old file. Mr Gaskell then instructed Mr Brook to offer Lot 1 to the purchasers. Mr Brook did so in his letter dated 27 July 2021 to DTI Lawyers.
[74] The delay between the telephone call with Mr Gaskell and the sending of the letter was because Mr Brook had a broken leg or ankle and was working restricted hours. It had nothing to do with the proposal in the letter, which accorded with the instructions of Mr Gaskell whom, Mr Brook said, was clear about what he wanted and was not befuddled or muddled.
[75] The letter itself is straightforward and clear. It said Lot 1 had not been included in the ASP as prepared by Ms Forsyth but was part of the property as viewed by the Smiths. The clear inference to be taken from that statement is that the Smiths had been shown and had expected to buy Lot 1. That inference is confirmed by the final paragraph of the letter, which said, in terms, that Lot 1 had been intended to have been transferred at the time of the original sale.
[76] The efforts of Mr and Mrs Gaskell to explain away the evident intent of what Mr Brook was instructed to do by reference to Mr Gaskell’s prostate cancer and his medication were confused, lacking in coherence and were not credible. Mrs Gaskell was also unable to explain the inconsistencies in the accounts she gave in her emails of September 2021, her brief of evidence and her oral testimony. In the end, she agreed that Mr Brook’s evidence of what occurred was to be accepted. As discussed above, the clear import of Mr Brook’s evidence is that the Gaskells had intended Lot 1 to be sold as part of the original sale and purchase of the Property.
[77] In addition, the Gaskells’ explanation that they had decided not to sell Lot 1 because of the accident and injury to their daughter was strained and not credible. Mrs Gaskell said everything had changed after the accident. But the accident
happened in October 2020 before the Property was marketed with Harcourts, before the Accurate Valuers valuation had been prepared and before the Property was listed on TradeMe. In all of those cases, Lot 1 was part of the intended sale, as Mrs Gaskell confirmed in evidence. I am satisfied that it is much more likely that the Gaskells decided to try to hang on to Lot 1 after they had learned that it had been omitted from the ASP and had realised that it may have a greater value than they had originally appreciated, whether or not they received a telephone appraisal of $450,000, as claimed by Mr Gaskell, or an offer to purchase for $480,000, as claimed by Mrs Gaskell.
[78] The fact the Gaskells met with the Waikato District Council on 6 August 2021 to discuss what could be built on Lot 1 also suggests that their interest in retaining Lot 1 arose some considerable time after the accident involving their daughter.
[79] For all these reasons, I am satisfied that the Gaskells’ evidence is not reliable and that the parties agreed at the visit to the Property on 3 April 2021 that Lot 1 was to be part of any sale and purchase of the Property, and they entered into the ASP on the basis of that intention.
Was the omission of Lot 1 from the ASP a mistake?
[80] For the reasons that follow, I am satisfied that the omission of Lot 1 from the draft ASP prepared by Ms Forsyth was a mistake and was the consequence of the disaggregated arrangements agreed between the Gaskells and HomeSell.
[81] Under those arrangements, Ms Forsyth was not involved in any direct discussions with the Gaskells over the legal description and size of the Property. She did not meet with the Gaskells but was in communication with them by phone and email. Someone else from HomeSell went to the Property, met with the Gaskells and took the photographs that appeared in the marketing material and in the information pack handed to the Smiths on 3 April 2021. Ms Forsyth also never saw the valuation referred to in the marketing material and information pack. Ms Forsyth was told about the valuation by the Gaskells but was not aware that it was based on a valuation of Lot 1 and Lot 2.
[82] While the Gaskells were not questioned about who they had communicated with in HomeSell on such details, Ms Forsyth accepted that the information must have been provided to Homesell by the Gaskells. While the documents prepared by HomeSell referred only to Lot 2, the documents contained a consistent error about the size of Lot 2, which was said to comprise 14.2069 or 14.207 ha, when the correct area, as stated on the certificate of title, is 14.3760 ha. How that error came about is unexplained. The valuation prepared by Accurate Valuers had the correct figure. However, the Harcourts marketing material contained the same incorrect figure as that in the HomeSell documents even though, on Mrs Gaskell’s evidence, Harcourts were marketing both lots and even though the boundaries marked in the aerial photograph in the Harcourts material excluded Lot 1. It is possible, therefore, that the error was carried over from the Harcourts material. If so, that material itself was confusing and incorrect.
[83] Even more importantly, Ms Forsyth was not present at the 3 April 2021 visit and had no knowledge of the discussions between the Gaskells and the Smiths. It appears that Ms Forsyth contacted Lincoln Smith on Sunday morning, the day after the visit following receipt of a text message from Mr or Mrs Gaskell confirming the visit had taken place and that the Smiths had expressed interest in the Property. All that Ms Forsyth had to go on were the documents that HomeSell had prepared, which referred only to Lot 2, and the Expression of Interest completed by Lincoln Smith and Lucy Smith, which offered to purchase Lot 1 and Lot 2.
[84] Somewhat bizarrely, Ms Forsyth said in evidence that she paid no attention to the Expression of Interest because it was not part of her process. According to Ms Forsyth, the information she included in the draft ASP was obtained from a telephone conversation she had with Lincoln Smith on the morning of 6 April 2021 after he had emailed her the Expression of Interest.
[85] It is apparent from the email Ms Forsyth sent Lincoln Smith at 10.32 am on 6 April 2021 that they did have a telephone conversation some time between the submission of the Expression of Interest and that email. However, the only detail that Ms Forsyth recorded from that conversation was the fact that Lincoln Smith is a New Zealand citizen. I consider it unlikely that Ms Forsyth did not have regard to the
Expression of Interest for other more material information such as the purchase price, the deposit, and the dates of unconditionality and settlement.
[86] However, even if Ms Forsyth’s account is correct and she did take that information from the telephone conversation, that does not absolve her or HomeSell of responsibility for ensuring that the draft ASP reflected the written offer made by TFR.
[87] It is plain that the Expression of Interest form is a HomeSell document. It is likely that Lincoln Smith received it with the documents Ms Forsyth emailed him on 4 April 2021, as he says was the case. He was not challenged on this point in cross- examination. It is also possible, however, that it was included in the information pack handed to the Smiths by the Gaskells at the 3 April 2021 visit. If so, HomeSell could not disavow responsibility for Lincoln Smith’s use of it to make the offer. In any event, however, Lincoln Smith obtained the form, and whether or not it was an authorised HomeSell form, it contained a clear offer to purchase the Property. It would have been inappropriate, therefore, for Ms Forsyth simply to have set aside the document, as she claimed to have done in evidence.
[88] In any event, and whether or not Ms Forsyth had regard to the Expression of Interest, I consider that the reason the draft ASP referred only to Lot 2 and did not reflect the TFR’s offer is the process by which Ms Forsyth prepared the draft ASP. As Ms Forsyth confirmed was the case, the draft ASP had been pre-populated with information taken from the material HomeSell had prepared prior to the 3 April 2021 visit. That included the legal description and the area of the land for sale. I consider it more likely than not that, when filling in the draft ASP, Ms Forsyth neglected to check that the pre-populated parts of the document reflected the TFR offer. In particular, Ms Forsyth neglected to check that the Legal Description of the land to be purchased in the draft ASP reflected that in the Expression of Interest.
[89] Normally, that omission would not be especially surprising because it would be unusual for an offer to seek to purchase land that, ostensibly, was not for sale. In this case, Ms Forsyth was on notice, as a result of Lucy Smith’s emails, that TFR was interested in Lot 1. However, I accept that, of themselves, Lucy Smith’s emails did
not indicate an intention to the purchase Lot 1. And, because she was not present at the 3 April 2021 visit and appears to have only had a basic text exchange with the Gaskells following the visit, Ms Forsyth would not have appreciated that the Gaskells intended to sell Lot 1 as well as Lot 2.
[90] In summary, I am satisfied that the failure to include Lot 1 in the ASP was the result of the following factors:
(a)The Gaskells and HomeSell failed to ensure that the description of the Property in the HomeSell marketing material accurately reflected the Gaskells’ intentions.
(b)the Gaskells’ agent was not aware of what the parties had agreed at the 3 April 2021 visit.
(c)The Gaskells’ agent did not ensure that the ASP accorded with the TFR offer.
[91] As a consequence, the draft ASP prepared by Ms Forsyth and, after amendment to reflect the Gaskells’ counteroffer on price, agreed to by TFR constituted a common mistake. The mistake was that, in limiting the purchase to Lot 2, the ASP did not reflect the agreement of the parties that the purchase was to comprise Lot 1 and Lot 2.
Should the mistake be rectified?
Contract and Commercial Law Act 2017
[92] Part 2, subpart 2 of the Contract and Commercial Law Act (CCLA) provides a statutory regime for the rectification of contractual mistakes.
[93] As stated in s 21(1) of the CCLA, the purpose of the subpart is to mitigate the arbitrary effects of mistakes on contracts by giving courts appropriate powers to grant relief in the circumstances mentioned in s 24. Under s 21(2)(b), those powers must not be exercised in a way that prejudices the general security of contractual relationships.
[94]Section 24(1) provides:
(1)A court may grant relief under section 28 to a party to a contract if,—
(a)in entering into the contract,—
(i)the party was influenced in the party’s decision to enter into the contract by a mistake that was material to that party, and the existence of the mistake was known to the other party or to 1 or more of the other parties to the contract; or
(ii)all the parties to the contract were influenced in their respective decisions to enter into the contract by the same mistake; or
(iii)the party and at least 1 other party were each influenced in their respective decisions to enter into the contract by a different mistake about the same matter of fact or of law; and
(b)the mistake or mistakes resulted, at the time of the contract,—
(i)in a substantially unequal exchange of values; or
(ii)in a benefit being conferred, or an obligation being imposed or included, that was, in all the circumstances, a benefit or an obligation substantially disproportionate to the consideration for the benefit or obligation; and
(c)in a case where the contract expressly or by implication provides for the risk of mistakes, the party seeking relief (or the party through or under whom relief is sought) is not obliged by a term of the contract to assume the risk that that party’s belief about the matter in question might be mistaken.
[95] Section 25 provides that a mistake in relation to a contract does not include a mistake as to the interpretation of the contract.
[96] Section 26 excludes relief under s 28 to a party who was aware of the mistake but elected to enter into the contract despite the mistake.
[97] Under s 27, the extent to which the party seeking relief caused the mistake is one of the considerations that must be taken into account in deciding whether to grant relief under s 28.
[98] Section 28(1) provides that, if the Court has the power to grant relief under ss 24 to 26, it may make any order that it thinks just. Under s 28(2)(c), relief may be by way of variation of the contract. Under s 28(3)(b) and (5), the Court may direct a party to transfer the whole or any part of any relevant property to any other party on such terms and conditions as it thinks fit.
[99] As is clear from s 24, the Court has a discretion as to whether to grant relief. Sections 21(2)(b) and 27 provide guidance as to the exercise of that discretion. In addition, it has been held that:
(a)the mistake must be as to the essential nature of the contract;7 and
(b)where carelessness on the part of one or both of the parties contributed to the mistake, that is likely to be taken into account, and the relative carelessness of the parties may also affect final outcomes.8
Does the CCLA apply?
[100] I am satisfied that s 24(1)(a)(ii) applies to the present situation. The Gaskells and the Smiths/TFR were influenced in their respective decisions to enter into the ASP by the same mistake. The Gaskells intended to sell Lot 1 as well as Lot 2, as they made clear to the Smiths during the 3 April 2021 visit and as they confirmed when Mr Gaskell instructed Mr Brook on 15 July 2021 to offer to transfer Lot 1 to TFR for no consideration. The Smiths/TFR intended to purchase Lot 1 as well as Lot 2, as is clear from the Expression of Interest and Lucy Smith’s due diligence prior to and during preparation of the ASP. The Gaskells and TFR both signed the ASP because they believed it included Lot 1 as well as Lot 2.
[101] I am also satisfied that s 24(1)(b)(i) applies. As a result of the exclusion of Lot 1, TFR acquired substantially less in value than it had intended to purchase. My reasons for reaching that conclusion are as follows.
7 Ware v Johnson [1984] 2 NZLR 518 (HC) at 539.
8 Wrenn v Boughen [2023] NZHC 2494 at [157].
[102] First, while the amount of land not acquired was relatively small (1335 square metres as compared with the total 14.51 hectares TFR had expected to purchase), according to the Accurate Valuers valuation, the land value of Lot 1 ($82.40 per square metre),9 was considerably higher than the value of the grazing land ($2.37 per square metre)10 and the steeper land ($0.53 per square metre)11 that makes up the bulk of Lot 2. That reflects the fact the land in Lot 1 is capable of more intensive use, whether for agriculture or for development as Lincoln Smith said was envisaged by TFR. Accordingly, the omission of Lot 1 and its development potential was considerable.
[103] Secondly, as Lincoln Smith said in evidence, the omission of Lot 1 could have a significant impact on TFR’s ability to quarry the southern area of Lot 2 because of the potential for objections to be raised by whoever owned Lot 1.
[104] For these reasons, I am satisfied that the common mistake made by the Gaskells and TFR is within the ambit of s 24(1)(a)(ii) and (b) of the CCLA.
[105] I am also satisfied that s 24(1)(c) does not apply. There is no provision in the ASP that expressly or by implication provided that TFR assumed the risk. Nor do ss 25, 26 or 27 apply. The mistake was not as to the interpretation of the ASP. It is clear that TFR was not aware of the mistake when entering into the ASP.
[106] Accordingly, apart from the matters set out in s 27 and the policy considerations set out in s 21(2)(b), which both go to the exercise of the Court’s discretion, the statutory restrictions on granting relief do not apply.
Should the Court exercise its discretion to grant relief?
[107] In terms of s 27, it cannot be said that TFR caused or contributed to the mistake. The Smiths had no part in the factors that led to the mistake as identified at para [90] above.
9 Based on the valuation of $110,000 for the 1335 square metres comprising Lot 1.
10 Based on the ascribed value of $23,700 per hectare.
11 Based on the ascribed value of $5,300 per hectare.
[108] Because TFR was purchasing the land for its potential for development and for quarrying, and Lot 1 was integral to those purposes, I am satisfied that the mistake was as to the essential nature of the contract.
[109] There remains the issue of carelessness.12 It could be said that both the Gaskells and TFR were careless about ensuring that the ASP reflected their common intention to include Lot 1 in the transaction. It is surprising that neither side thought to check that the legal description of the land being purchased accorded with the discussion during the 3 April 2021 visit and, in the case of the Smiths/TFR, that it accorded with the offer in the Expression of Interest. However, as the Gaskells were not usually in the business of selling land, it is likely that they believed that Ms Forsyth would take care of the legal details. And, while the Smiths/TFR had greater experience in buying and selling land, it is also likely that they considered that any legal issues would be covered off by the solicitor’s approval condition — as they should have been had that condition not been waived.
[110] Given the value of the purchase, it was imprudent of TFR not to have instructed their solicitors to expedite their consideration of the ASP when Mr Gaskell asked to bring forward the unconditional date, particularly when there was five days between Mr Gaskell’s voicemail request and the proposed new date. However, imprudence does not equate to carelessness in the circumstances of this case.
[111] For these reasons, I do not consider that the failure of TFR to verify that the ASP contained the correct legal description of the land being purchased is a reason for denying relief.
[112] I am also satisfied that to grant relief under s 28 of the CCLA would not prejudice the general security of contractual relationships. While it is axiomatic that people, including companies, must abide by the contracts they enter into, the reality is that mistakes are made, even when professional advisers are engaged. As recorded in s 21(a) of the CCLA, the purpose of the provisions set out in ss 24 to 28 is to mitigate the arbitrary effects of such mistakes. Given that, as I have found, both the Gaskells
12 Wrenn v Boughen, above n 8, at [157].
and the Smiths/TFR intended to include Lot 1 in their agreement for the purchase of the Property, I am satisfied that it would be arbitrary for that intention not to be given effect just because, for the reasons canvassed above, the ASP did not reflect that common intention.
[113] I am also satisfied that, as submitted by Mr Braun, counsel for TFR, the appropriate relief is:
(a)to vary the ASP to include Lot 1 in the legal description of the land; and
(b)an order that the Gaskells transfer Lot 1 to TFR for no consideration and at no cost to TFR.
Other causes of action
[114] Given that I have found that the parties entered into the ASP on the basis of a common mistake, it is unnecessary for me to consider the claims made on the basis of unilateral mistake, breach of the Fair Trading Act, misrepresentation and rectification in accordance with common law principles.
Result and orders
[115]I find in favour of the plaintiff under its first cause of action.
[116]I make the following orders:
(a)The Agreement for the Sale and Purchase of Real Estate dated 8 April 2021 between:
VENDOR: Harold Leonard Gaskell and Christine Elizabeth Hendry and
PURCHASER: Terra Firma Resources Ltd,
is varied as follows:
The Legal Description of the PROPERTY shall read:
Area (more or less) 14.3760 ha
1335 m2
Lot/Flat/Unit Pt Lot 2
Lot 1
DP S64649
35743
Record of Title (unique identifier) SA52A/52
SA23B/1355
(b)I direct the defendants, at their cost and for no consideration, to transfer to the plaintiff Lot 1 DP 35743 — SA23B/1355.
Costs
[117] As the successful party, TFR is entitled to costs. Ordinarily, I would order costs on a 2B basis and direct the parties to try to agree costs between them. However, in case TFR wishes to seek costs on some other basis, or the parties are unable to agree, I reserve leave to:
(a)TFR to apply for costs on some other basis;
b) the Gaskells to reply to any such application; and
(b)both parties to file memoranda of no more than five pages if they are unable to agree costs on a 2B basis.
G J van Bohemen J
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