Tony Walter Clive Nesbit and Selina Kelly McLachlan Nesbit v Roderick Russell Porter

[2000] NZCA 123

IN THE COURT OF APPEAL OF NEW ZEALAND CA165/99

BETWEEN	TONY WALTER CLIVE NESBIT AND SELINA KELLY MCLACHLAN NESBIT
Appellants

AND	RODERICK RUSSELL PORTER
First Respondent

AND	KELMAR HOLDINGS LIMITED
Second Respondent

Coram:	Thomas J Keith J Blanchard J
Appearances:	N Collis and J R Nield for Appellants M G Keall for Respondents
Judgment:	11 July 2000

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

1. This is an application for recall of a judgment of this Court delivered on 20 April 2000 which has not yet been sealed.  The application is opposed.  Written submissions have been received from counsel on both sides and it has been agreed that the application be determined upon the papers without a hearing.

2. The judgment of the Court was that the appeal be dismissed with the case being remitted to the District Court for it to rule upon the appellant’s claim for damages, “being the cost of repairing the shock absorbers”.

3. It is now pointed out, for the appellants, that the damages claim was much more extensive than that.  We agree.  We have fallen into error by looking at the wrong statement of claim.  The current pleading is the second amended statement of claim and in that there are claims for:

   [a]        The cost of repair of pins and bushes and replacement of tyres (totalling $916.00).

   [b]        Damages for “foreseeable loss”, itemised as replacement vehicle ($3,000) and distress and inconvenience ($12,000); and

   [c]        Compensation for loss in value ($5,990).

(We omit an unquantified claim for “interest on Conditional Agreement if any” which appears to be related to the unsuccessful claim for cancellation and return of instalments paid under the conditional purchase agreement.)

1. The claim for “compensation” is in reality a damages claim – see s18(3)(b) of the Consumer Guarantees Act 1993 which allows a consumer to obtain from the supplier “damages in compensation for any reduction in value of the goods below the price paid or payable by the consumer for the goods” where a failure of the goods to comply with a guarantee cannot be remedied or is of a substantial character within the meaning of s21.

2. It was the Court’s intention to remit the matter to enable the damages claim to be pursued.  It should not have been restricted in the way which appears in para [53] of the judgment.

3. We therefore grant the application, recall the judgment and amend para [53] by omitting the words “being the cost of repairing the shock absorbers”.

4. Nothing in this judgment should be taken as indicating a view upon the merits of the claim for damages.

5. As there was opposition, the appellants are entitled to costs of $500.00 on this application.

Solicitors

Kit Clews, Hamilton for Appellants

Andrew Stokes, Milford for Respondents