TEMARAMA (2004) LTD v RICHARD LOCKHART ASSOCIATES LTD [2013] NZHC 2380

TEMARAMA (2004) LTD v RICHARD LOCKHART ASSOCIATES LTD [2013] NZHC 2380

Because the defendants made positive assertions that the 2004 accounts were compiled from information provided by the plaintiffs and relied on an alleged written acknowledgement, they were required to provide further and better particulars identifying the information, who supplied it, when and in what form; denials coupled with positive assertions were insufficient and the defendants had effectively elected to respond and must therefore furnish particulars.

Citation
[2013] NZHC 2380
Parties
First Plaintiff: Temarama (2004) Limited (In Liquidation); Second Plaintiff: Henry David Levin; Second Plaintiff: Vivien Judith Madsen-Ries; First Defendant: Richard Lockhart Associates Limited; Second Defendant: Richard George Simon Lockhart
Court
High Court
Jurisdiction
New Zealand
Judgment Date
12 September 2013
Procedural Posture
Civil (professional Negligence / Deceit / Contract / Fair Trading Act) / Interlocutory Particulars Application
Outcome
Application granted. Defendants ordered to provide further particulars in relation to specified paragraphs of their statement of defence; costs awarded to plaintiffs on a 2B basis.
Legal Topics
Deceit, Negligence, Breach of Contract, Fair Trading Act 1986, Particulars in Pleadings, Contributory Negligence
Tort Contract Company Law Consumer Protection / Fair Trading Act Deceit Negligence Breach of Contract Fair Trading Act 1986 +2 more

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Parties

Temarama (2004) Limited (In Liquidation)

First Plaintiff

Henry David Levin

Second Plaintiff

Vivien Judith Madsen-Ries

Second Plaintiff

Richard Lockhart Associates Limited

First Defendant

Richard George Simon Lockhart

Second Defendant

Procedural Posture

Civil (professional Negligence / Deceit / Contract / Fair Trading Act) / Interlocutory Particulars Application

Legal Issues

  1. 1 Whether the defendants must provide further and better particulars of assertions that the 2004 accounts were compiled from information supplied by the plaintiffs
  2. 2 Whether a defendant who elects to respond to particulars must furnish further information to make the response non-evasive
  3. 3 The distinction between material facts and particulars in pleadings and its application to the defence here

Ratio Decidendi

Because the defendants made positive assertions that the 2004 accounts were compiled from information provided by the plaintiffs and relied on an alleged written acknowledgement, they were required to provide further and better particulars identifying the information, who supplied it, when and in what form; denials coupled with positive assertions were insufficient and the defendants had effectively elected to respond and must therefore furnish particulars.

Court Disposition

Application granted. Defendants ordered to provide further particulars in relation to specified paragraphs of their statement of defence; costs awarded to plaintiffs on a 2B basis.

Orders

  • Defendants to provide further particulars in relation to each paragraph of the statement of defence for which particulars were sought by the plaintiffs, except where particulars have already been provided
  • If defendants do not possess particular information they must state that fact