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Watson v Whitehead

Watson v Whitehead

Case [2015] NZHC 739 17 April 2015

Civil Litigation & Procedure

Contract Law

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2013-488-000359 [2015] NZHC 739

BETWEEN
DENIS ERIC WATSON AND MERYL

JOY WATSON (AS TRUSTEES OF THE SALEM CHARITABLE TRUST)

First Plaintiffs

WATSON & SON LIMITED Second Plaintiff

AND

JOHN EDWARD WHITEHEAD AND ROSALEEN MARIE WHITEHEAD AND EDWARD IVAN WHITEHEAD (AS TRUSTEES OF THE J AND R WHITEHEAD TRUST)

First Defendants

SHILOH CHARITABLE TRUST Second Defendant

Hearing: On the papers

Appearances:

K P Sullivan for First and Second Plaintiffs
M C Black for First and Second Defendants

Judgment:

17 April 2015

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 17 April 2015 at 11.30 am
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date…………………...........

Solicitors for 1st and 2nd plaintiffs - Michael Bale, Wellington
Counsel – K P Sullivan
Solicitors for 1st and 2nd defendants – Michael Hockly, Auckland
Counsel – M C Black

WATSON v WHITEHAD [2015] NZHC 739 [17 April 2015]

Introduction

[1] I refer to my interim judgment dated 27 November 2014.1 In that judgment I made various findings as to liability. I requested the parties’ expert accountants to liaise and prepare final calculations in accordance with the interim judgment and I put in place a timetable for that to occur.

[2] Counsel were unable to comply with the timetable. They sought and were granted an extension of time. Memoranda were filed on 2 March 2015. There were difficulties with the memoranda filed. The accountants had not liaised. There were differences between them and various findings made by me in the interim judgment had been ignored in the calculations undertaken. I issued a further minute. I then received further memoranda from counsel. This time there was agreement on many matters, but some aspects of the damages calculations were still unclear and in some respects the expert accountants had, for a second time, failed to calculate damages in accordance with the interim judgment. I therefore convened a telephone conference with counsel. That telephone conference was held on 25 March 2015 and I issued a further minute on the same day. I then received a joint memorandum dated 2 April
2015 detailing the amounts payable pursuant to my interim judgment and also requesting recall of paragraph 268(d) of that judgment, or alternatively, correction of that paragraph pursuant to the slip rule. Separate memoranda dated 2 April 2015 and
10 April 2015 were also filed dealing with the issue of whether or not contract interest is payable after the date of this final judgment.

[3] There are five issues outstanding:

(a) Whether paragraph 268(d) can and should be recalled or corrected.

(b)Whether judgment should be entered against Mr and Mrs Watson personally for the interest payable on the payments due in respect of the third agreement as summarised in paragraph 268(c) of my interim
judgment.

1 Watson v Whitehead [2014] NZHC 2992.

(c) Whether WSL/Mr Watson can set off monies payable by them or either of them pursuant to the agreement for…

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 Watson v Whitehead

Details

AGLC: Watson v Whitehead [2015] NZHC 739
Case: [2015] NZHC 739
Decision Date: 17 April 2015

CaseChat Overview and Summary

This case involved a dispute between Denis and Meryl Watson, as trustees of the Salem Charitable Trust and Watson & Son Limited, and John and Rosaleen Whitehead, as trustees of the J and R Whitehead Trust, along with Shiloh Charitable Trust. The matter was heard on the papers, with K P Sullivan appearing for the plaintiffs and M C Black for the defendants. Justice Wylie delivered the judgment on 17 April 2015.

The court had to decide on five outstanding issues: (a) whether to recall or correct a paragraph of the interim judgment; (b) whether Mr and Mrs Watson should be personally liable for interest payments; (c) whether the defendants could set off monies payable for honey supply against rental payments; (d) the quantum of the payments and interest; and (e) whether the contractual interest rate applied after the final judgment.

The court found that the interim judgment contained an error regarding the interest rate, which should be corrected to reflect the actual rate of 5%. The court also ruled that Mr and Mrs Watson were personally liable for interest payments under the third agreement, as they had signed the contract without the third trustee. Regarding set-off, the court allowed an equitable set-off between the parties, but only after calculating the total amounts owing under each agreement.

As for quantum, the court ordered the defendants to pay the specified sums for honey supply, rental, and interest, with some payments to accrue interest at different rates. The court also awarded damages for the cost of putting 180 poorly-conditioned hives back in good order.

Finally, the court ruled that the contractual interest rate applied after the final judgment until actual payment, as the agreement used the phrase "until the date of actual payment," which excluded the doctrine of merger. The court granted relief to the plaintiff by declaring that the defendants were liable to pay interest post-judgment at the contract rate.

Orders