Weal v Palace Developments 2016 Limited - [2021] NZHC 2709

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-254

[2021] NZHC 2709

BETWEEN
CHRISTINE ANN WEAL

Plaintiff

AND

PALACE DEVELOPMENTS 2016 LIMITED

Defendant

Hearing: 29 September 2021 (by AVL)

Appearances:

D M O’Neill and H J Mills for the Plaintiff M J Meier for the Defendant

Judgment:

11 October 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

WEAL v PALACE DEVELOPMENTS 2016 LIMITED [2021] NZHC 2709 [11 October 2021]

[1] The defendant, Palace Developments 2016 Limited, seeks particulars of the plaintiff’s claim. The plaintiff, Ms Weal, owns a rural property in Te Awamutu. The defendant owns a neighbouring block of land on which it is carrying out a 20 lot residential subdivision. The plaintiff runs an equestrian training school on her land.

[2] The plaintiff pleads it was a condition of the subdivision consent granted to the defendant that it undertake bulk earthworks on its property and on a portion of the plaintiff’s adjacent land. The defendant denies this allegation and says: “The subdivision consent permitted earthworks to be undertaken on the defendant’s property”. The defendant further denies the subdivision consent required that it first obtain the plaintiff’s consent. That pleading might be thought to be splitting hairs when only the plaintiff can permit work to be done on her land.

[3] In any event, the plaintiff pleads that in order to obtain her consent, the defendant provided her with a proposal, called the “consultation package”. The consultation package included a subdivision plan, original contour plan with aerial photographs, a general arrangement with finished contours, and a cut/fill layout plan.

[4] The plaintiff says the consultation package proposed, among other things, that the defendant would carry out the earthworks on the properties resulting in site recontouring in accordance with the contour plan (the Contour Plan). Retaining walls were to be built and an estimate of the volume of earthworks was provided. It was agreed no material would be removed from the plaintiff’s site. The area of the plaintiff’s land affected by the earthworks is said to be 4,300 m2.

[5] The finished levels for the two properties were shown on the Contour Plan. The earthworks involved, in part, the levelling off a small hill between the properties to tie in the new ground level with existing ground levels. The Contour Plan allowed for the development’s finished ground level to be extended approximately two metres through the boundary onto the plaintiff’s land for consistent contouring.

[6] The consultation package also proposed that the pasture on the plaintiff’s property would be re-sown, and estimated the earthworks would take two or three months along with other commitments.

[7] While the defendant admits sending the consultation package, it says it was an initial proposal only.

[8] At the heart of the plaintiff’s claim is her contention that the defendant did not comply with the consultation package, in particular, the Contour Plan. There are two causes of action: the first is breach in contract on the basis the…

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 Weal v Palace Developments 2016 Limited

Details

AGLC: Weal v Palace Developments 2016 Limited [2021] NZHC 2709
Case: [2021] NZHC 2709
Decision Date: 11 October 2021

CaseChat Overview and Summary

Christine Ann Weal brought a claim against Palace Developments 2016 Limited, alleging breaches of a residential subdivision consent and the terms of a consultation package. The defendant sought further and better particulars of the plaintiff’s claim under r 5.26 of the High Court Rules 2016. The court was required to determine whether the plaintiff's statement of claim provided sufficient detail to meet the requirements of r 5.26, which mandates that the statement of claim must give sufficient particulars to inform the defendant of the plaintiff’s cause of action. The court considered whether the plaintiff had adequately specified the breaches of the consultation package and the consequential loss.

The court found that the plaintiff's statement of claim needed to be more explicit. It was necessary for the plaintiff to identify the specific locations and areas where the defendant's actions deviated from the consultation package and why those deviations were considered breaches. The court ordered that the plaintiff provide detailed particulars of the breaches, including the specific terms of the consultation package that were not met and the extent of the deviation. The court also required details on how the breaches caused damage and how remediation would be achieved, along with the associated costs. However, the court declined to order particulars regarding how the breaches led to specific losses, as the claim was based on the cost of remediation rather than loss of value. The court directed the plaintiff to amend the statement of claim to include the required particulars and reserved costs.

Orders