CUNNINGHAM V BUTTERFIELD & ORS HC CHCH CIV 2011-476-000400

CUNNINGHAM V BUTTERFIELD & ORS HC CHCH CIV 2011-476-000400 [28 August 2012]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV 2011-476-000400[2012] NZHC 2174BETWEEN NEVILLE JOHN CUNNINGHAMPlaintiffAND JOSEPH GORDON BUTTERFIELD &ORSDefendantsHearing: (On Papers)Counsel: Plaintiff in PersonC L Webber for DefendantsJudgment: 28 August 2012JUGMENT OF WHATA J[1] In my judgment of 3 April 2012 I made an order granting relief from forfeiture as sought by the plaintiff. I also noted that the parties had not by that stage addressed me upon the conditions on which I might grant relief from forfeiture. I said that this might be a case where relief from forfeiture might be granted in tandem with an award of damages to the defendants. I also, somewhat optimistically at that time, said that I was not encouraging an elongation of this dispute.[2] As it transpires, after much toing and froing the parties were unable to reach agreement and filed lengthy submissions dealing with respective damages said to arise from the facts in this case. Given the cost and Court time needed to make a thorough assessment of damages, I sought an indication from the parties as to whether or not they were prepared to engage in a judicial settlement conference. It transpires that, after giving it careful consideration, counsel for the defendants ultimately resolved not to seek damages, counsel stating that resolution of the issue of damages would avoid the necessity for any settlement conference and the expenditure of further resources on this litigation. This response is to becommended. The damage to both parties in colloquial terms has clearly been substantial and I think little would have been served by spending still further resource on assessment of respective damages.[3] I have now received a memorandum from the plaintiff still seeking a hearing on damages. But I did not contemplate awarding damages to the plaintiff. Rather, my residual discretion was reserved solely for the purposes of whether or not relief should be granted on conditions, and including damages, to the defendants. Further, and perhaps more fundamentally, the plaintiff did not seek damages in his statement of claim. On that basis I do not consider it is appropriate and/or necessary for me to consider a damages claim by the plaintiff.[4] On the question of costs, both parties have indicated that they have incurred substantial costs as a consequence of these proceedings. In the end I have resolved that relief ought to be granted, but as my judgment indicates, I was not satisfied with the way the plaintiff had approached matters. Given that I consider that both parties have had an equal measure of success in this case, I resolve that costs should lie where they fall. Judgment accordingly.Whata JSolicitors:Wynn Williams, Christchurch, for Defendantscc: Mr N J Cunningham