TVDC Limited (in receivership) v Osborne HC Auckland CIV 2011-404-8517

[2011] NZHC 1036

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-8517

BETWEEN  TVDC LIMITED (IN RECEIVERSHIP) Plaintiff

ANDPHILIP OSBORNE Defendant

Hearing:         7 September 2011

Counsel:         T J G Allan for Plaintiff

T Herbert for Defendant

Judgment:      9 September 2011

JUDGMENT OF HEATH J

This judgment was delivered by me on 9 September 2011 at 11.00am pursuant to Rule 11.5 of the High

Court Rules

Registrar/Deputy Registrar

Solicitors:

Grove Darlow & Partners, PO Box 2882, Auckland Kemps Weir, PO Box, 62-566, Central Park, Auckland Counsel:

T J Herbert, Level 13, Shortland Chambers, Shortland Street, Auckland

TVDC LIMITED (IN RECEIVERSHIP) V OSBORNE HC AK CIV 2011-404-8517 9 September 2011

[1]      TVDC Ltd sues Mr Osborne on an agreement for the sale and purchase (the agreement) of a property in Marlborough.  The agreement is pleaded as having been made on 6 August 2009.  Mr Paul Vegar signed the agreement on behalf of TVDC Ltd as vendor.   It is alleged that Mr Osborne signed the agreement, as purchaser. The consideration was $1,820,000 plus GST.  Settlement was to be effected on the later of 19 February 2010 or the issue of title for the property.

[2]      On 11 March 2010, TVDC’s solicitor confirmed that title had issued and advised settlement would be effected on 31 March 2010.  Notwithstanding the issue of a settlement notice, Mr Osborne did not complete the purchase.  TVDC treated his conduct as repudiating the agreement and sold the property on or about 2 December

2010 to mitigate loss.  The sale price was $500,000 plus GST.  That leaves a total claim of $1,517,489.15.

[3]      Mr Osborne denies liability.  At a hearing before me on 7 September 2011, Mr Osborne, through his counsel, confirmed his position.  He asserts that he did not sign the agreement or, if he did, it was signed as one of many documents put before him at a time when he did not have the opportunity to turn his mind to the contents. That position is consistent with what was said in a letter dated 10 June 2010, in which his solicitor advised that Mr Osborne “did not initial or sign” or “consciously sign the agreement”.

[4]      The proceeding was issued on 22 December 2010.  Mr Osborne took no steps to defend the proceeding within the time stipulated for filing a Statement of Defence. Nevertheless, an informal document was filed shortly after 25 April in which he attempted to obtain leave to defend.  That was filed following a Minute of Associate Judge Sargisson, by which she directed the Registrar to list the proceeding for formal proof.  The Associate Judge gave Mr Osborne an opportunity to file a Statement of Defence by 5pm on 25 April 2011.  Because 25 April is Anzac Day the document was filed later than that.

[5]      The proceeding came before Whata J for formal proof on 16 June 2011.  He

recorded the issue raised by Mr Osborne as to whether he had “knowingly signed the

agreement for sale and purchase”.   Whata J’s Minute, prepared in Mr Osborne’s presence, indicated that all “other matters are beyond dispute” and that Mr Osborne had consented to proceed on the single issue whether the agreement was knowingly signed by him. A hearing was scheduled for 7 September for that to be argued.

[6]      The day before the intended hearing, Mr Osborne provided to the solicitor for TVDC a lengthy brief of evidence.  At the hearing, he attended with counsel, Mr Herbert.  Mr Allan, for TVDC, acknowledged that it was pointless to proceed with evidence that day and sought an adjournment, which I granted.

[7]      Discussion took place about whether the issue in dispute could, at least in part, be resolved through forensic analysis of the handwritten signature on the agreement that purports to be that of Mr Osborne.  Counsel conferred and I recorded that  they  would  provide  a  memorandum  to  me  identifying  terms  on  which  a document examiner should conduct an examination.  I indicated that the costs of the examination would be shared in the first instance and that if Mr Osborne failed to pay his share by a stipulated date he would be debarred from defending the proceeding.

[8]      I adjourned the proceeding until 3.45pm on 8 September to make orders.  A joint memorandum was filed before that time.   The hearing was vacated and appearances excused.  I proceed now to record the orders to be made.  I have done so in a short judgment, for ease of reference by any other Judge who becomes seized of the proceeding.

[9]      By consent, I make the following orders:

(a)      I refer the agreement dated 6 August 2009 for examination by Police Document Examination Section (the Section) in Wellington.   An analyst appointed by that Section shall examine the document and others provided by way of comparison and report to the Court on whether or not the initials and signature of the purported purchaser are those of Mr Osborne.  If the Section is unable to form an opinion, one way or the other, it shall state that in a report to the Court.

(b)On or before 16 September 2011, TVDC and Mr Osborne shall each pay to the Registrar of the High Court at Auckland the sum of $500 to be held on account of the Section’s costs of undertaking the examination.

(c)      Once a sum of $1000 is held by the Registrar, he shall inform Mr Allan, as counsel for TVDC, and Mr Allan shall forthwith deliver the original of the agreement to Ms Marquet at the High Court at Auckland.

(d)On or before 30 September 2011, Mr Osborne, through his solicitors, shall deliver to the solicitors for TVDC not less than ten original documents  pre-dating  6  August  2009  that  have  Mr  Osborne’s signature or initials endorsed thereon.  Those documents shall also be delivered to the Registrar on or before 30 September 2011.

(e)      On  or  before  30  September  2011,  TVDC  by  its  solicitors,  shall assemble any original or photocopied documents in its power, possession or control that it contends have Mr Osborne’s signature and/or initials endorsed thereon.   Those documents shall also be delivered to the Registrar on or before 30 September 2011.

(f)      The  Registrar  shall  contact  Mr  David  Boot,  Senior  Document Examiner at the Section so that he may give directions for the transportation by courier to the Section, of the agreement, the original specimen signature obtained from Mr Osborne in my presence on 7

September 2011,1  and the documents provided in terms of paras (d)

and (e) above.

(g)TVDC and Mr Osborne shall use their best endeavours to comply in a timely manner with any requests (whether for other documents or

otherwise) that may be made by the Section.

1 This document is held in a sealed envelope on the Court file entitled “ORIGINAL SIGNATURE of defendant, Philip OSBORNE”.

(h)On receipt, the Section shall keep the documents referred to in para (f) above in safe custody and return the documents to the Registrar by courier upon completion of the examination.  That courier pack shall include a written report to the Court marked for my attention, with copies being sent directly by the Section to counsel for both TVDC and Mr Osborne.

[10]     The orders I have made endeavour to capture those set out in para 8(a)–(k) of the joint memorandum of counsel of 8 September 2011 but in words that set out the sequence of events to occur more accurately.  Leave is reserved for either counsel to request a telephone conference if they believe I have recorded  an agreed order inaccurately.

[11]     As indicated on 7 September 2011,2 I order that unless Mr Osborne pays the sum of $500 to the Registrar by the date set out in para [9](b) above, he shall be debarred from defending the proceeding.

[12]     The Registrar is directed to set the proceeding down for a case management conference  before  me  by  telephone,  at  9am  on  the  first  available  date  after  4

November 2011, so the report can be considered and further directions made to deal with any outstanding issues.

[13]     Each counsel shall file and serve a memorandum setting out their respective positions in advance of the conference.  TVDC shall file and serve its memorandum no  later  than  five  working  days  before  the  date  allocated  and  advised  by  the Registrar and Mr Osborne shall file and serve his memorandum no later than two working days before the conference.

[14]     All questions of costs are reserved.

P R Heath J

Delivered at 11.00am on 9 September 2011

2 See para [7] above.