BRODIE v TURKMANI & Anor [2017] NZHC 2720

BRODIE v TURKMANI & Anor [2017] NZHC 2720 [7 November 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-001633[2017] NZHC 2720BETWEEN BERNARD WILLIAM BRODIEAppellantAND BASSAM TURKMANIFirst RespondentSTEPHEN GRAHAM LOCKWOODSecond RespondentHearing: 1 November 2017Appearances: Q Haines on behalf of J D Dallas for the AppellantP L Rice for the First RespondentM Eastwick-Field and C Grenfell for the Second RespondentJudgment: 7 November 2017JUDGMENT OF VAN BOHEMENThis judgment was delivered by me on Tuesday, 7 November 2017 at 1:30 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Solicitors: JD Dallas, WellingtonRussell McVeagh, AucklandCounsel: P Rice, AucklandIntroduction[1] Bernard Brodie, applied for leave to adduce further evidence for the hearing ofhis appeal against the decision of District Court Judge Harrison, which held that therespondent, Bassam Turkmani, had validly cancelled a contract between Mr Brodieand Mr Turkmani for the purchase of a classic car — a 1963 Mercedes Benz 220 SE.[2] The evidence that Mr Brodie sought to adduce is:(a) An affidavit sworn by Mr Brodie's solicitor, John Langford, on21 August 2017, regarding the fact and consequences of Mr Brodie notbeing aware that Mr Turkmani was a registered motor vehicle trader;and(b) A fourth affidavit of Mr Brodie sworn on 22 September 2017, regardingthe records of Mr Brodie's mobile telephone showing calls made by MrBrodie to Mr Turkmani prior to the cancellation of the contract.[3] As I said at the end of the hearing of the application on 1 November 2017, Idecline the application. My reasons follow.District Court decision[4] Mr Brodie initiated a proceeding seeking specific performance of a contractbetween Mr Brodie and Mr Turkmani for the sale of the Mercedes or, in the alternative,damages of $200,000 so Mr Brodie could purchase an alternative 1963 Mercedes Benz220 SE. The issue at trial was whether Mr Turkmani had validly cancelled his contractwith Mr Brodie.[5] In his judgment,1 District Court Judge Harrison focused on what had happenedin the various dealings between Mr Turkmani on the one hand and Mr Brodie and MrBrodie's solicitor on the other, for the purpose of deciding whether the contractbetween Mr Brodie and Mr Turkmani had been validly cancelled.1 Brodie v Turkmani [2017] NZDC 12859.[6] That evaluation included:(a) The advertisement placed by Mr Turkmani on TradeMe for the sale ofa 1963 Mercedes Benz 220 SE on an "as is where is" basis;(b) Mr Brodie's visit to Auckland from Wellington on 14 February 2016 toview the car at Mr Turkmani's home, Mr Brodie's agreement duringthat visit to buy the car for $40,000, the payment of a deposit of $1,600by Mr Brodie, and the arrangements agreed between Mr Turkmani andMr Brodie regarding payment of the balance of the purchase price andcollection of the car;(c) Subsequent correspondence between Mr Brodie and Mr Turkmani, andbetween Mr Brodie's solicitor, Mr Langford, and Mr Turkmani,between Wednesday 17 February 2016 and Monday 22 February 2016about the previous ownership of the car and about when payment wouldbe made and the car collected. This included Mr Turkmani's emailmessages seeking reassurance that Mr Brodie intended to complete thepurchase;(d) Mr Turkmani's email to Mr Brodie on Tuesday 23 February 2016saying he intended to cancel the deal because of non-performance byMr Brodie and Mr Langford's email in response saying Mr Brodie didnot accept cancellation;(e) Mr Turkmani's email and text message to Mr Brodie on the afternoonof Friday 26 February 2016 confirming Mr Turkmani's cancellation ofthe contract; and(f) Mr Turkmani's sale of the car later in the evening of Friday 26 February2016 to Mr Lockwood for $60,000.[7] The Judge held2 that the contractual arrangement between Mr Brodie andMr Turkmani was that the vehicle would be picked up on the weekend of 20–21 February 2016 or Monday 22 February at the latest, and that Mr Brodie had beenin breach of his obligation pursuant to s 29 of the Sale of Goods Act 1908 to acceptthe vehicle by collecting it and paying for it at the agreed time. The Judge also heldthat it was implicit from the correspondence on 22 and 23 February 2016 that ifpayment had been made by Thursday 25 February 2016, Mr Turkmani would haveaccepted it.[8] There was no discussion in the judgment of the advice Mr Brodie had receivedfrom Mr Langford or of any reliance of Mr Brodie on that advice. Nor was there anydiscussion in the judgment of any telephone calls, answered or unanswered, betweenMr Brodie and Mr Turkmani between 22 and 26 February 2016.Requirements for leave to adduce further evidence on appeal[9] The admission of further evidence on appeal is governed by r 20.16 of the HighCourt Rules. Rule 20.16 provides:20.16 Further evidence(1) Without leave, a party may adduce further evidence on a question offact if the evidence is necessary to determine an interlocutoryapplication that relates to the appeal.(2) In all other cases, a party to an appeal may adduce further evidenceonly with the leave of the court.(3) The court may grant leave only if there are special reasons for hearingthe evidence. An example of a special reason is that the evidencerelates to matters that have arisen after the date of the decisionappealed against and that are or may be relevant to the determinationof the appeal.(4) Further evidence under this rule must be given by affidavit unless thecourt directs otherwise.2 At [42]-[43].Positions of parties on application for leave[10] Mr Haines appeared on behalf of Mr Brodie and spoke to written submissionsfiled by Mr Dallas in support of the application for leave. The essential contentionsadvanced by Mr Haines and Mr Dallas were that:(a) The special reason for adducing the evidence was that Mr Turkmaniwas a motor vehicle trader under the Motor Vehicles Sales Act 2003and had failed to comply with the disclosure requirements of that Act,having concealed his status as a motor vehicle trader from Mr Brodieand thus from Mr Brodie's solicitor, Mr Langford. Had Mr Langfordbeen aware of Mr Turkmani's status as a motor vehicle trader, he wouldhave known of the statutory protections that applied to purchasers fromsuch traders and his advice to Mr Brodie would have been quitedifferent. Without disclosing what that advice was, Mr Haines assertedthat Mr Langford would have advised Mr Brodie that he could havebeen confident in transferring to Mr Turkmani the funds required tocomplete the purchase of the vehicle.(b) The evidence about Mr Turkmani concealing his status as a motorvehicle trader could not reasonably have been produced at the hearing.It was only after the District Court judgment had been issued thatMr Brodie had gone to Mr Langford to enquire about the adviceMr Langford had given Mr Brodie about cancellation of the contract.(c) The records of Mr Brodie's mobile phone calls to Mr Turkmani wererequired to counter misleading evidence given by Mr Turkmani in crossexamination at the District Court hearing regarding communicationsbetween Mr Brodie and Mr Turkmani prior to final cancellation of thecontract.(d) Had the trial judge known that Mr Turkmani had lied or had givenmisleading evidence, he may have accorded different weight toMr Turkmani's evidence.[11] Mr Rice for Mr Turkmani and Ms Eastwick-Field for Mr Lockwood, thepurchaser of the vehicle following cancellation of the contract between Mr Brodie andMr Turkmani, submitted that Mr Brodie's application did not meet the threshold forthe admission of new evidence set out in r 20.16 of the High Court Rules because:(a) There were no special reasons for hearing the evidence.(b) The evidence was not fresh; the fact that Mr Turkmani was a licensedmotor vehicle trader was known at the District Court hearing and anymatters material to that issue could have been raised at that hearing.Similarly, the records of Mr Brodie's mobile phone calls toMr Turkmani could have been adduced at the hearing if Mr Brodie'scounsel had wished to do so. The answers given by Mr Turkmani incross examination had been factually accurate and had not beenmisleading.(c) The evidence was not cogent or material to the issues at the trial —which concerned the validity of Mr Turkmani's actions in cancellingthe contract and not the advice that Mr Langford might or might nothave given Mr Brodie. Nor did it concern any efforts that Mr Brodiemight or might not have made to contact Mr Turkmani after the date onwhich the contract had to be performed.[12] Mr Rice also submitted that the application for leave to adduce this evidencesuggested Mr Brodie wanted to run an entirely different case on appeal from that runbefore the District Court and that to admit that evidence at this stage would imperilthe hearing of the appeal because, if leave were granted to adduce this new evidence,the two defendants would necessarily need an opportunity to respond to the evidencebefore the appeal hearing.Discussion[13] The submission that Mr Turkmani's status as a motor vehicle trader was notknown at the time of trial is disproved by the opening sentence of Judge Harrison'sjudgment:3[1] In February 2016 the first defendant Mr Turkmani was aged 19 andwas a registered motor trader.(Emphasis added.)[14] Later in the judgment, the Judge specifically considered whetherMr Turkmani's status as a registered motor vehicle trader had any bearing on thecontractual dispute. The Judge said:4[25] I should also note at this stage that although Mr Turkmani was aregistered motor vehicle dealer at the time the contract was entered into, hemade the point that as a sale had not been concluded, he was not obliged tocomplete a sale agreement. I do not regard his registration as of anysignificance.(Emphasis added.)[15] Since the issue was clearly before the court at the first instance hearing, Icannot give any credence to the contention that Mr Turkmani's alleged concealmentof that status is a special reason of the kind required by r 20.16 of the High CourtRules. If there had been an issue about Mr Turkmani's status as a motor vehicle traderand how his alleged failure to disclose that status bore on the issues at the hearing, MrBrodie's counsel had every opportunity to raise those issues at the hearing.[16] The evidence about Mr Brodie's phone calls to Mr Turkmani also fails to meetthe requirements of r 20.16. It is clearly evidence that Mr Brodie could have called atthe hearing. Even if I accept, for the sake of argument, the contention of Mr Hainesand Mr Dallas that Mr Turkmani gave less than honest evidence at the hearing abouthis interactions with Mr Brodie, it was entirely foreseeable before the hearing that thekey issue of whether the contract had been validly cancelled was likely to turn on thecommunications, actual and attempted, between the Mr Brodie and Mr Turkmani. Had3 At [1]4 At [25]Mr Brodie's counsel wanted to adduce evidence of Mr Brodie's efforts to contact MrTurkmani after Mr Turkmani had signalled his intention to cancel the contract on 23February 2016, there was ample opportunity to adduce that evidence, regardless ofwhatever Mr Turkmani might say in evidence.[17] Lastly, I agree with Mr Rice's submission that even if this evidence wereadmitted, then, "So what?" That is particularly the case with the contention thatMr Langford would have given different advice to Mr Brodie had he known at thetime that Mr Turkmani was a registered motor vehicle trader. The District Court Judgeheld that the contract between Mr Brodie and Mr Turkmani required payment of thebalance of the purchase price and collection of the car by Monday 22 February 2016at the latest. That was a requirement to be performed regardless of Mr Turkmani'sstatus, regardless of any advice from Mr Langford. It was also a requirement to beperformed regardless of any efforts Mr Brodie may have made to contact Mr Brodiebetween 23 and 26 February 2016.Result[18] The application for leave is dismissed.[19] Costs are reserved._________________________van Bohemen J