SIGNAL PROPERTY TRUST v BERRY & CO SOLICITORS [2018] NZHC 239

SIGNAL PROPERTY TRUST v BERRY & CO SOLICITORS [2018] NZHC 239 [26 February 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2015-031-35[2018] NZHC 239BETWEEN ALLAN PHILLIP SIGNAL ANDPRUDENCE LEA SIGNAL AS TRUSTEESOF THE SIGNAL PROPERTY TRUSTPlaintiffAND GEORGE LATHAM BERRY, DAVIDRICHARD TRAVERS SALTER, MICHAELJOHN DE BUYZER AND DAVIDMICHAEL JACKSON TRADING ASBERRY & CO SOLICITORSFirst DefendantAND MICHAEL JOHN DE BUYZERSecond DefendantHearing: On the papersCounsel: A R Shaw for PlaintiffJ Eckford for DefendantsJudgment: 26 February 2018JUDGMENT OF CLARK J(APPLICATION FOR RECALL)Introduction[1] The plaintiff, the Signal Property Trust, sued its solicitors, the defendants, forloss caused by the defendants' negligence and the first defendant's breach of contract.On 6 October 2017, I gave judgment for the plaintiff and awarded damages totalling$441,957.44.11 Signal v Berry [2017] NZHC 2466.[2] A notice of appeal was filed on 3 November 2017.[3] On 15 February 2018, the parties filed a joint memorandum seeking recall ofthe judgment.Substantive judgment[4] The parties seek recall of two passages of the judgment. It is necessary to putthose passages in context.[5] The plaintiff Trust is engaged in property development and subdivision. Thebackground to the claim began in 2006 when the plaintiff purchased a property withthe intention of subdividing and selling the resultant eight lots. Mr Signal engagedBerry & Co, the first defendant to provide legal services. However, Berry & Co failedto obtain titles for the subdivision before the Council's approval relating to thesubdivision had lapsed.2 Certificates of Title were not issued until 15 August 2013.3[6] The defendants admitted they breached their duty of care to the plaintiff andthe first defendant admitted breach of contractual terms but the defendants deniedliability for any loss. Causation and quantum were disputed.4[7] The application for recall is directed to my quantification of damages inrelation to Lots 5 and 6. In respect of Lot 6 I stated:[51] The end result is that the plaintiff lost the very real prospect of sale toMr Gunther and with it, the purchase price of $240,000. The law requires theplaintiff to show it had a substantial chance of sale. That is more thanestablished. It follows that I see no basis for discounting the risk [sic]. As as[sic] June 2011 when title was expected to be available, Mr Gunther andMr Signal were expecting to, and would have, executed the agreement for saleand purchase in accordance with their earlier agreement. Beyond thedefendants' wrongful conduct, no other event intervened to contribute to lossof sale. In those circumstances the quantification of damages is the full lossto the plaintiff of the $240,000 purchase price which would have been paid.52 At [4].3 At [5].4 At [5].5 It is this italicised passage that the parties identify for recall.[8] Turning to Lot 5 I found that the circumstances in which its sale failed weredifferent from the circumstances leading to the failed sale of Lot 6.6 I was satisfiedthat if title had been available in June 2011 the sale of Lot 5 would have proceeded atthe agreed purchase price of $240,000 but in light of events subsequent to that date Ifound the uncompleted sale, as at September 2013, could not be attributed solely tothe defendants' wrongful conduct. I then stated:[64] But the claim is one for lost opportunity: because the sales of Lots 5and 6 did not proceed in mid-2011, the Trust lost the opportunity, it is said, tofund the placement of relocatable homes on the subdivision by August 2013,thereby enhancing its marketability.[65] The plaintiff has established there was a substantial chance of sellingLot 5 in mid-June 2011. But for the defendants' conducted [sic] I find it washighly likely Lot 5 would have sold at the agreed purchase price of $240,000.[9] The end "Result" is set out at [101] to [103]. In terms of those parts of itsstatement of claim which the plaintiff had established I stated:[101] The plaintiff has succeeded in establishing the losses of opportunitypleaded at [33.2], [33.3] and [33.5] of its claim. It follows that the plaintiff isentitled to:(a) the full amount of the purchase price of $240,000 it wouldhave received in respect of the sale of each of Lots 5 and 6 butdiscounted by the $203,000 which the plaintiff received fromthe eventual sale of Lot 5 ($277,000);[10] The parties seek recall of that part of [51] which I have italicised (at [7] above)and all of [101](a).[11] In their joint memorandum the parties observe that the damages awardincluded the sum of $240,000 for Lot 6 reflecting its value at the time at which titleshould have been available. The parties then observe that I similarly assessed the valueof Lot 5 at $240,000 however the actual damages awarded was only $37,000 reflectingthe sale price of Lot 5 for $203,000. These two observations accurately reflect thejudgment at [51] and [101](a).[12] The parties' memorandum then states that no discount was applied to Lot 6 totake into account the fact that it is still owned by the plaintiffs. That, also, is correct.6 Signal v Berry, above n 1 at [61].[13] Beyond what I have set out, and that the parties seek recall pursuant to r 11.9of the High Court Rules, the parties identify no basis for their application.Assessment[14] Subject to appeal a judgment stands once delivered. The recall of a judgmentis a serious step taken in the limited categories of case set out in Horowhenua Countyv Nash (No 2):7first, where, since the hearing there has been an amendment to a relevantstatute or regulation or new judicial decision of relevance and high authority;secondly, where counsel have failed to direct the Court's attention to alegislative provision or authoritative decision of plain relevance; andthirdly, where for some other very special reason justice requires the judgmentbe recalled.[15] Beyond their agreement that damages should be "reduced by $167,000 to atotal $274,957.44 plus costs" the parties do not identify which, if any, of the threenarrow bases for recall they rely upon. Here, the only possible category is the third:that for some very special reason, justice requires the judgment to be recalled.[16] But the parties advance no such special reason justifying recall in the interestsof justice. Rather, the parties have reached an agreement as to a reduced level ofdamages payable to the plaintiff and the implication (it seems) is that I omitted toreduce, as the parties would now have them reduced, the damages to be awarded inrespect of Lot 6.[17] The application amounts to a substantive challenge to my judgment. Theplaintiff's claim has been determined in a judgment that reflects my intentions. Whatis clear from the judgment itself is that:(a) Lot 5 sold for $203,000 in June 20158 and the full amount of thepurchase price $240,000 was to be discounted by that amount.97 Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633, affirmed in Erwood v Maxted [2010]NZCA 93, (2010) 20 PRNZ 466 at [3].8 Signal v Berry, above n 1 at [7](e).9 At [101](a).(b) In respect of Lot 6 the circumstances bearing on my quantification ofdamages are described at [51] and in the passages preceding [51].(c) Importantly, the award of damages is based on the losses of opportunitypleaded at [33.2], [33.3] and [33.5] of the statement of claim. As Istated at [101] the plaintiff succeeded in establishing the losses ofopportunity pleaded at those paragraphs.[18] I decline to engage in any further explanation of my reasoning particularly asthe judgment is under appeal.10[19] The parties seek the substitution of the sum I awarded at [51] and [101](a) witha lesser sum that they agree upon. But their application overlooks the fact the amountof the award was reached following the findings and analyses to which I have referred.To grant the application would require more than the substitution of one sum foranother. It would require a rationale for the substituted sum which my judgment doesnot contain.[20] Accordingly, I do not propose to recall my judgment. For better or for worsethe judgment must stand, subject to the outcome of the appeal. The parties remainfree, of course, to pursue their apparent agreement on the sum to which the plaintiff isentitled.[21] The application is dismissed._____________________________Karen Clark JSolicitors:C & F Legal, Nelson for PlaintiffsParker Cowan, Queenstown for Defendants10 Similarly, I do not take this opportunity to correct the typographical errors that the judgmentunfortunately contains. Some are indicated where I have added "[sic]" following errors in thepassages which are quoted above.