TVDC LIMITED (IN RECEIVERSHIP) V OSBORNE HC AK CIV-2010-404-8517

TVDC LIMITED (IN RECEIVERSHIP) V OSBORNE HC AK CIV-2010-404-8517 [13 March 2012]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2010-404-8517[2012] NZHC 367BETWEEN TVDC LIMITED (IN RECEIVERSHIP)PlaintiffAND PHILIP OSBORNEDefendantHearing: 13 March 2012Appearances: T J G Allan for PlaintiffT J Herbert for DefendantJudgment: 13 March 2012ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELLSolicitors:Grove Darlow (TJG Allan) P O Box 2882 Auckland 1140, for PlaintiffEmail: TimA@grovedarlow.co.nzKemps Weir, P O Box 62566 Kalmia Street, Auckland 1546 for DefendantEmail: email@kempsweir.co.nzCopy for:T J Herbert, P O Box 3320 Auckland 1140, for DefendantEmail: tim@timherbert.co.nz[1] The plaintiff applies for an "unless" order debarring the defendant fromdefending, unless the defendant provides better particulars and also discovery. I have now been advised that the defendant has provided the required discovery and that matter is no longer being pursued.[2] The defendant has applied for non-party discovery against Mr Vegar, a former director of the plaintiff, now bankrupt.[3] The substantive proceeding is a claim by the plaintiff under an agreement for sale and purchase of a 28 hectare property in Marlborough. The plaintiff was formerly called The Vines Development Company Ltd. It is now in receivership. The receivers initiated the present proceeding. Under the agreement for sale and purchase entered into before receivership the company is said to have agreed to sell the property to the defendant for $1,820,000 plus GST. The defendant defaulted on settlement. The plaintiff issued a settlement notice. When the settlement notice was not complied with, the plaintiff cancelled and re-sold the property within a year of cancellation. The property was re-sold for $500,000 plus GST. The plaintiff is now claiming damages of about $1.5 million for its loss incurred on re-sale.[4] The defendant denies that he entered into an agreement to buy the land. He has put his denial in various forms. Initially, he maintained that he had not signed the agreement for sale and purchase – but that defence has gone by the wayside after an independent document examiner found that the purchaser's signatures on the agreement for sale and purchase matched the defendant's signatures. The matter now concerns the defendant's amended pleading to the statement of claim.Paragraph 3 of the statement of claim pleads that the parties entered into the agreement for sale and purchase. Paragraph 3 of the amended statement of defence of 7 November 2011 says:(a) On the basis of the report of David Boot (of New Zealand Police) dated 20 October 2011, he is bound to concede (although he continues to have no recollection) that he affixed his signature and initials to various pages of a purported written agreement for sale and purchase (Agreement), particulars of which are set out in the paragraph;(b) He says that he never saw the Agreement in full until it was provided to himby the Plaintiff's then solicitors in or around April 2010/(c) He says that the Agreement was compiled by the Plaintiff (through its agent, Paul Frederick Vegar (Mr Vegar)), without the Defendant's knowledgefrom:(i) Documentation in Mr Vegar's or the Plaintiff's control, containing the Defendant's signature and/or initials, that had been obtainedfrom the Defendant in relation to other transactions, over a period of time prior to the date of the Agreement; and(ii) Documentation upon which the Defendant's signature and/or initialshad been obtained by erroneous or fraudulent misrepresentations by Mr Vegar, on behalf of the Plaintiff, over a period of time prior to the date of the Agreement.(d) The Defendant had no intention that these pages should be compiled together to form an Agreement or any knowledge that such compilation was to occur.(e) The Defendant's mind did not follow the signature or the initials on theAgreement as finally compiled.[5] The defendant has also separately pleaded defences of non est factum and mistake. The defence of non est factum also relies in part on the matters pleaded in paragraph 3 of the statement of defence.[6] The plaintiff says that it is embarrassed by the pleading of paragraph 3 because it does not understand what documents the defendant is relying on in hisallegations that Mr Paul Vegar had compiled documents with the defendant'ssignature in them, which Mr Vegar used to make it appear as though the defendant entered into this agreement for sale and purchase.[7] I accept that the plaintiff will be embarrassed if the case goes to hearing on the present pleading of paragraph 3. The plaintiff will have the burden of proving that the parties entered into an agreement for sale and purchase. In the face of allegations that there was not an agreement (because the document relied on constitutes something which was not a contractual document entered into by the defendant), the plaintiff will be in difficulty at trial unless it is given better particulars. I take into account Mr Allan's submission that the allegations inparagraph 3 amount to allegations of fraud or similar reprehensible conduct. Thereis a need to ensure that such allegations are presented responsibly and that when such allegations are put into pleadings they are properly focused.[8] Mr Herbert accepts the thrust of that as well. I give directions that the defendant is to provide particulars to the plaintiff. These particulars can be simply a statement of particulars as to paragraph 3 or they can be an amended pleading – it isthe defendant's option. The particulars to be given are to identify which agreementsthe defendant relies on as constituting agreements which he says Mr Vegar relied upon to bind him into the agreement in the statement of claim, or if there are parts or extracts of those agreements, similarly to identify those agreements. In identifying the agreements he should identify who the parties to the agreements are and the approximate times when they were entered into. If they are agreements for the sale and purchase of land, the properties they relate to should be identified. If there are other kinds of agreements or documents, then the nature of those agreements or documents is to be identified.[9] I set a date by which the defendant is to provide those particulars or amended pleading. The deadline is 2 April 2012. If the defendant has not provided those particulars, then at trial the defendant will not be entitled to rely on paragraph 3 of the amended statement of defence.[10] The other matter today is the defendant's application for non-party discovery against Mr Vegar. Mr Vegar has not yet been served. The application for non-party discovery is to be given a call date in the chambers list on 30 March 2012 at 2:15pm.[11] The plaintiff has succeeded on the application for particulars and is entitled to costs on a 2B basis. Mr Herbert opposes any costs being awarded. He says that the plaintiff did not seek costs in its application and that the defendant has always been willing to provide the particulars.[12] The first point is that costs can be awarded even though not expressly sought. The second is that the plaintiff has had success today in that it has got a direction for particulars to be provided, with consequences for the defendant if they are notprovided – something the plaintiff did not have before the hearing today. Accordingly, I award costs to the plaintiff on a 2B basis.[13] One final matter – the bundle of documents on the court file prepared for this hearing is to remain on the file for the judicial settlement conference...........................................R M BellAssociate Judge