BLACKWATER PROPERTIES LIMITED v CRAWFORD GROUP LIMITED [2023] NZHC 1390 [2 June 2023]

BLACKWATER PROPERTIES LIMITED v CRAWFORD GROUP LIMITED [2023] NZHC 1390[2 June 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2023-409-2[2023] NZHC 1390BETWEEN BLACKWATER PROPERTIES LIMITEDPlaintiffAND CRAWFORD GROUP LIMITEDFirst DefendantHARRY SHAND CRAWFORDSecond DefendantCIV-2023-409-3BETWEEN ANDREW SIMON SMITH and YVONNELORRAINE SMITHPlaintiffsAND CRAWFORD GROUP LIMITEDDefendantHearing: (Determined on the papers)Counsel: H M Cassin for PlaintiffsS D Campbell for DefendantsJudgment: 2 June 2023JUDGMENT OF ASSOCIATE JUDGE LESTER(as to liability by consent and directions as to assessment of damages)[1] In these proceedings the plaintiffs seek judgment following the cancellation oftheir contracts for the sale of residential properties following the defendants failure tosettle.[2] Originally, the plaintiffs had sought specific performance but on the morningof what was to be a formal proof hearing, the solicitors representing the plaintiffs gaveformal notice to the solicitors representing the defendants that the agreements for saleand purchase were cancelled. That notice advised the defendants that pursuant tocl 11.4 of the agreements for sale and purchase, the plaintiffs were retaining thedeposits and suing for damages.[3] As noted, the plaintiffs originally sought specific performance and in theirpleading they sought in the alternative an award of damages "in such sum as the Courtconsiders just", however, the damages claimed were not quantified.[4] At the formal proof hearing, counsel for the plaintiffs sought damages asquantified in schedules and supported by affidavit evidence, which had not beenserved on the defendants.[5] In a Minute issued by Justice Eaton following the formal proof hearing, hisHonour considered it appropriate for the defendants to have notice of the damagessought. His Honour said that he intended entering judgment in favour of the plaintiffsfollowing the failure of the defendants to settle the purchases. His Honour said:If the defendants wish to be heard in relation to quantification of damages,notice must be given on or before 5 pm on Monday 29 May 2023.[6] The defendants, by their counsel, have indicated that the claim for damageswill be contested but that they admit liability.[7] Accordingly, the defendants having admitted liability, I enter judgment as toliability in favour of the plaintiffs against the defendants in each proceeding.[8] Ms Cassin, counsel for the plaintiffs objects to the defendants filing a defencein relation to quantum. Ms Cassin correctly points out that pursuant to r 15.9 of theHigh Court Rules 2016 (the Rules), once a matter has been listed for formal proof,a defendant may not file a statement of defence without leave.[9] That the defendants would be able to take issue with the quantum of damagesclaimed is inherent in the direction made by Eaton J set out above at [5]. That isreinforced by paragraph [11](c) of his Honour's Minute where he said if the defendantsdid not give notice that they wished to be heard on damages, he would determine theformal proof application on the papers. It follows that if the defendants did wish to beheard on the quantum of damages, formal proof would not be entered.[10] The defendants have received notice of the quantum claimed by the plaintiffs.[11] I make the timetable directions set out at paragraph 4 of the defendants'memorandum of 29 May 2023.[12] Pursuant to s 20(1)(f) of the Senior Courts Act 2016, an Associate Judge hasjurisdiction to make an assessment of damages where liability has been determined.[13] There will be a case management conference with me at 2:00pm on Thursday20 July 2023.[14] The plaintiffs have produced valuation evidence to support the damagesclaimed. I assume the defendants will be calling valuation evidence as well. If that isthe case, the parties are to discuss the conferral of the experts and the completion ofa joint expert report. I would also expect counsel to have agreed on any issues ofdiscovery by the conference date, given such are likely to be limited.[15] I allocate 27 and 28 September 2023 as the hearing date of the plaintiffs'damages claim.___________________________Associate Judge LesterSolicitors:Cavell Leitch, ChristchurchCopy to Defendants