BROUGHTON V WYATT FAMILY TRUST HOLDINGS LTD HC AK CIV-2010-404-4303

BROUGHTON V WYATT FAMILY TRUST HOLDINGS LTD HC AK CIV-2010-404-4303 29 October 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2010-404-4303BETWEEN MARK RODNEY BROUGHTON AND KATHERINE LYNETTE BROUGHTON Appellants AND WYATT FAMILY TRUST HOLDINGS LIMITED Respondent Hearing: 29 October 2010 Appearances: Mr M Keall for Appellants Mr G Wyatt (granted leave to appear on behalf of Respondent) Judgment: 29 October 2010(ORAL) JUDGMENT OF LANG J [on applications for recall of judgment and for leave to appeal]Solicitors: Vlatkovich & McGowan, Whangaparaoa Mr M Keall, Auckland Copy to: Mr G Wyatt, Silverdale[1] On 20 October 2010 I delivered a judgment in which I allowed an appeal by Mr and Mrs Broughton against the decision of His Honour Judge Hinton in the District Court refusing Mr and Mrs Broughton summary judgment against Wyatt Family Trust Holdings Limited ("Wyatt"). I dismissed a cross-appeal by Wyatt against the Judge's refusal to enter summary judgment in its favour. [2] Following delivery of the judgment, Wyatt applied for an order recalling the judgment. It has also applied for an order granting it leave to appeal to the Court of Appeal. Counsel for Mr and Mrs Broughton also filed a memorandum in which he raised one issue that I had not addressed in my judgment. [3] I deal first with the application for recall of judgment.The application for recall of judgment[4] The principles upon which a Court may recall its judgment are well established. The authority usually cited in this context is the judgment of Wild CJ inHorowhenua County v Nash (No 2) [1968] NZLR 632 where the Chief Justice said at 633:Generally speaking a judgment once delivered must stand for better or worse subject, of course, to appeal. Where it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled – first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court's attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.[5] The principles enunciated by the Chief Justice in the Horowhenua Countycase have been recently reaffirmed by the Court of Appeal in Unison Networks Ltd v Commerce Commission [2007] NZCA 49 and Churchill Group Holdings Ltd v Fava[2010] NZCA 335. In those judgments the Court of Appeal has confirmed that the categories of case in which the Court may recall its judgment are limited. [6] In the present case three aspects of my judgment clearly fall into a category whereby a judgment may be recalled on what is general known as the "slip rule".This applies when a judgment contains an error, often on a very minor point. The first of these is in [22] of my judgment where I referred to 23 April 2007. Counsel agree that that the correct date is 23 May 2007. At [48] I referred to Laidlaw, when the reference should have been Gibbston Valley Estate Ltd v Owen (1999) 4 NZ ConvC 193,024. Finally, I omitted to allow Mr and Mrs Broughton costs in relation to the proceeding in the District Court. That result ought to have followed as a result of my conclusion on the appeal against the refusal to enter summary judgment. I therefore recall my judgment in relation to those three points to correct them in the way that counsel agree is appropriate. [7] The final issue in respect of which Wyatt seeks recall is much more complicated. In the District Court Wyatt advanced its application against Mr and Mrs Broughton on the basis that they were not entitled to interest for late settlement because of various contractual provisions. The argument for Wyatt on this point was set out in the written submissions that Mr Wyatt presented to the District Court. The issue was not, however, canvassed in the written submissions for Wyatt on appeal other than in an end note that did not draw attention to the substantive nature of the dispute. Counsel for Mr and Mrs Broughton did not refer to the issue at all in his written submissions. It was not referred to, either, by Mr Wyatt or by counsel for Mr and Mrs Broughton during oral argument before me. [8] Moreover, at the conclusion of argument I specifically asked both Mr Wyatt and counsel for Mr and Mrs Broughton whether either party took issue with the manner in which the judgment sums were formulated. Mr Wyatt indicated that, subject to the arithmetic being correct, he had no matters to add. On that basis I issued my judgment in accordance with the amount for late settlement that Mr and Mrs Broughton sought. [9] Mr Wyatt asks me to recall my judgment so that he can present his argument in detail. He seeks to argue that Mr and Mrs Broughton were not entitled to interest for late settlement because the agreement for sale and purchase provided that interest for late settlement would only be payable in the event that the agreement required the vendor to provide the purchaser with vacant possession upon settlement. He contends that the agreement in the present case did not provide for vacant possessionto be given to Mr and Mrs Broughton. This was because the special conditions inserted in the agreement recorded the existence of an informal grazing arrangement in respect of the land that Mr and Mrs Broughton were purchasing. The agreement provided that that arrangement would continue following settlement. For this reason, he says, Mr and Mrs Broughton were not entitled to claim interest under the agreement for late settlement. [10] I do not propose to finally decide this matter because it is a matter that ought to have been raised formally and in detail in the written submissions presented in support of, or in opposition to, the appeals. It should also have been the subject of oral argument at the hearing. It is not appropriate to raise such a substantive issue following the delivery of judgment. [11] I also consider that there are obstacles in Wyatt's way in relation to this particular argument. The agreement provides that the purchaser may claim interest for late settlement if the property is sold subject to vacant possession. Clause 3.1 of the agreement provides that "unless particulars of a tenancy are included in this agreement the property is sold with vacant possession and the vendor shall so yield the property on the possession date". I take the view that the word "tenancy" is used deliberately. It relates to a tenancy agreement or lease arrangement under which the tenant or lessee has the right to exclusive possession of the land and also to the other rights that a statutory tenancy or lease generally provide. [12] The agreement for sale and purchase that the parties entered into in the present case makes it clear that the arrangement between Wyatt and the person grazing the land was informal in nature. Special condition 14 of the agreement described the arrangement as follows:As at the date hereof, the property is subject to an informal grazing arrangement between the Vendor and GL and L Bailey ("Bailey") of 1190 Weranui Road. Although there are no formal terms and conditions, the arrangement can be described as follows: a) Bailey may graze stock on the property and use its facilities (ie, water supply, shearing facilities, stockyards). b) No rent is payable.c) The Vendor is not obliged to maintain the facilities. d) Either party can terminate the arrangement on giving a reasonable period of notice. In the case of termination by the Vendor, a reasonable period is one that gives Bailey sufficient time to prepare the stock for sale and sell it at a reasonable price.[13] Mr Wyatt submits that the special condition makes it clear that the property was not sold with vacant possession, and that the special condition must prevail over any general conditions inserted in the agreement. That follows from Clause 1.3(3) which provides:Where any inserted term (including any Further Terms of Sale) conflicts with the General Terms of Sale the inserted terms shall prevail.[14] I do not see any inconsistency between special clause 14 and any of the general terms. Clause 3.1 relates to the circumstances in which a property will be deemed to be sold with vacant possession for the purposes of the agreement. The consequences of that clause flow through to Clause 3.10(3), which provides entitlement for late interest where the vendor is able and willing to give vacant possession on the possession date. [15] In my view, the special condition can be reconciled with the general conditions because it does no more than record the existence of a grazing arrangement that does not amount to a tenancy. That being the case, no particulars of any tenancy were included in the agreement, and the property was sold with vacant possession for the purposes of the agreement. Although the person grazing stock on the property may have been entitled to continue to do so after settlement, the arrangement did not provide that person with the right to exclusive possession of the land or any of the other rights that normally attach to a formal lease or tenancy. It would have been open to Mr and Mrs Broughton to move their own stock onto the land and to graze it alongside the stock owned by the third party. I therefore do not consider that the contractual provisions upon which Wyatt relies are necessarily as decisive as it contends.[16] My conclusion is therefore that I should not recall my judgment on such a fundamental point, particularly when it is likely is that my conclusion would not favour Wyatt.The application for leave to appeal[17] I now turn to the application for leave to appeal. Wyatt is seeking by this route to have a second appeal. Leave may only be granted where the point to be argued on the appeal is of general importance or is of such importance to the parties that it outweighs the inevitable delay and cost that a further appeal will create:Waller v Hider [1998] 1 NZLR 412; Snee v Snee (2000) 13 PRNZ 609. [18] The point that Wyatt wishes to advance on appeal relates to the issue of whether a nominated purchaser under an agreement for sale and purchase is entitled to complete the contract as if it were the original purchaser. More particularly, the issue is whether the nominee is entitled to waive, or confirm satisfaction of, any conditions that may have been inserted in the agreement for the sole benefit of the purchaser. I agree that that point is arguable, and that there is no direct authority in this Court or the Court of Appeal to confirm the position either way. [19] Several decisions, however, have proceeded on the basis that a nominee may complete an agreement in the place of the purchaser. I referred to three of those at [23] to [25] of my judgment. I also referred at [27], to the following passage from the judgment of the Supreme Court in Laidlaw & Anor v Parsonage [2010] 1 NZLR 286 (SC) when it declined leave to appeal:[3] The very purpose of a nominee provision is to enable the nominee to take the benefit of the contract by enforcing it (as permitted by s 8), while at the same time leaving the vendor with the protection of the continuing liability of the purchase if the nominee proves unwilling to complete. A designation by description requires no more than a sufficient identification of the person who may take the benefit. There is no good reason why that person should not be identified by the nomination of the purchaser. Identification by a third party or by the occurrence independently of an event or by some other particular means is not required by s 4.(Emphasis added)[20] I take the view, as I indicated in my judgment at [28], that this passage clearly suggests that the Supreme Court considered that a nominee has the ability to complete a contract in place of the nominating party. [21] For these reasons I do not consider that the issue that the Court of Appeal would be asked to determine is of any general importance. It may be of some importance to Wyatt, but this proceeding relates to a relatively modest sum of money. [22] In the event that leave to appeal is granted, a further delay of at least 8 to 12 months can be expected before the Court of Appeal hears the case and issues a decision. That is in the context of a claim for less than $30,000 by Mr and Mrs Broughton and a claim for $35,000 by Wyatt. Every time this proceeding comes before the Court Mr and Mrs Broughton incur further expense that they cannot fully recover, or at least have not been able to recover to date, by means of an award of costs. [23] I take the view that both parties now need to put the issues that this proceeding has raised behind them. Settlement of the property occurred on 12 July 2007. Wyatt did not issue its proceeding in the District Court until June 2009, almost two years after the settlement of the sale of the property. After the applications by both parties for summary judgment were heard in December 2009, a decision was not issued until 30 June 2010. I do not consider that any further delay can be contemplated. [24] For these reasons I decline leave to appeal. Mr and Mrs Broughton are entitled to costs in this Court and in the District Court in accordance with the draft judgment that their counsel has produced today. They are also entitled to costs and disbursements on a Category 2B basis in relation to the two applications that I have just determined. Lang J