Wrightson Ltd v Blackmount Forests Ltd - [2010] NZCA 631

IN THE COURT OF APPEAL OF NEW ZEALAND
CA311/2009
[2010] NZCA 631
BETWEENWRIGHTSON LIMITED

Appellant

ANDBLACKMOUNT FORESTS LIMITED

First Respondent
ANDBRUNEL PEAK FORESTS LIMITED

Second Respondent

Hearing:2 June 2010

Court:William Young P, Glazebrook and Chambers JJ
Counsel:M G Ring QC and D H McLellan for Appellant

J G Miles QC and S A Grant for Respondents

Judgment:20 December 2010 at 4 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.
B The appellant must pay the respondent costs for a complex appeal on a band A basis and usual disbursements.

REASONS OF THE COURT

(Given by Chambers J)

Table of Contents
Para No

A forestry venture in Southland     [1]
Issues on the appeal  [9]
What test is applied to limitation matters on a strike-out application?  [16]
Is the contract cause of action frivolous, vexatious or an              abuse of process?
The contract claim  [20]
A duty to disclose the facts  [39]
Deciding not to disclose the facts  [43]

Is the negligence cause of action frivolous, vexatious or an abuse of process?
The negligence claim  [60]
A duty to disclose the facts  [74]
Deciding not to disclose the facts  [77]

Where to from here?  [81]
A forestry venture in Southland
[1]        On 19 November 1997, Blackmount Forests Ltd,[1] the first respondent, entered into a conditional agreement with Trinity Foundation (Services No 2) Ltd. This agreement provided that 374 hectares of land owned by Trinity in Southland were to be used by Blackmount to establish and harvest a Douglas fir forest. Blackmount was required to use Wrightson Ltd, the appellant, to plant and manage the forest. There was also a provision for Trinity to procure a certificate from Wrightson identifying and measuring the area that was suitable for Douglas fir trees. The agreement was conditional on Blackmount carrying out due diligence.
[1]     Blackmount Forests Ltd is the agent for a joint venture, of which the second respondent, Brunel Peak Forests Ltd, is a member. We shall refer to the respondents collectively as Blackmount.
[2]        On 25 November 1997, Wrightson certified that 340 of the 374 hectares were suitable for planting in Douglas fir (the suitability certificate). Wrightson also advised Blackmount that the areas suitable for planting would have a site index of 34 metres, which is said to be a favourable indication of the potential growth of, and so revenue from, the forest (the site index statement).
[3]        Blackmount pleads that on 26 November 1997, in reliance on these representations about the forest, it declared the agreement with Trinity unconditional and entered into a forestry management agreement with Wrightson.
[4]        The initial planting of the Douglas fir trees was completed in 1998. Under the management agreement, Wrightson was required to provide quarterly reports to Blackmount. Blackmount says that these reports painted a favourable picture of the state of the forest. No major health or growth problems were reported. In particular, there was no suggestion in the reports that the representations earlier made about the total area suitable for planting, or the site…

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 Wrightson Ltd v Blackmount Forests Ltd

Details

AGLC: Wrightson Ltd v Blackmount Forests Ltd [2010] NZCA 631
Case: [2010] NZCA 631
Decision Date: 20 December 2010

CaseChat Overview and Summary

In Wrightson Ltd v Blackmount Forests Ltd, the Court of Appeal of New Zealand dismissed an appeal brought by Wrightson Ltd against a decision of the High Court that denied Wrightson's application to strike out claims made by Blackmount Forests Ltd. The High Court had previously held that Blackmount's claims for breach of contract and negligence against Wrightson were not time-barred, as Blackmount had established an arguable case for an extension or postponement of the limitation period under section 28(b) of the Limitation Act 1950. Wrightson argued that Blackmount had to allege that Wrightson had deliberately concealed the true position to claim the benefit of section 28(b). The Court of Appeal held that the focus of section 28(b) was on knowledge of relevant facts and knowledge of a duty to disclose them, rather than on whether or not the non-disclosure was wilful. The Court of Appeal also held that Blackmount's pleadings were deficient in several respects and that an amended pleading was required before the case could proceed to trial.

Orders