NOEL CROWHURST v GO WEST REALTY LIMITED & ORS [2000] NZCA 153 (8 August 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca92/00

	between	NOEL CROWHURST
		First Appellant

	AND	GO WEST REALTY LIMITED
		Second Appellant

	and	NOEL WILLIAM LAWTON and KATHLEEN JANE LAWTON
		First Respondents

	AND	PHILLIP ANTHONY NORCROSS AND JENNIFER DENISE NORCROSS
		Second Respondents

Hearing:	8 August 2000
Coram:	Richardson P Thomas J McGrath J
Appearances:	P J Napier for Appellants
	P J Dale for Second Respondents
Judgment:	8 August 2000

judgment of the court delivered by RICHARDSON p

[1] This appeal is against the refusal of Paterson J to recall a judgment he had delivered allowing an appeal from the District Court in a claim for damages or compensation arising out of the sale of a house property.

[2] Mr Crowhurst, a real estate consultant, and his firm, Go West Realty Limited, the present appellants, acted on the sale of the Norcross's, the second respondents, home to the Lawtons, the first respondents.The floor area was 3,552 sq feet but the Lawtons were advised through a brochure prepared by the real estate agent using information known to the Norcross's that it was around 4,500 sq feet.The Lawtons claimed damages for misrepresentation under s6 of the Contractual Remedies Act 1969 and compensation for breach of ss9 and 14 of the Fair Trading Act 1986.

[3] In the District Court Judge Cadenhead dismissed the claim. Paterson J allowed the appeal under the Fair Trading Act and fixed the compensation at $36,000, apportioned as to 3/4ths against the real estate agents and 1/4th against the Norcross's.The real estate agents applied to Paterson J to recall his judgment, contending that he had not addressed their primary argument as to apportionment, namely that on the evidence the agent's failure to obtain the Norcross's approval before publishing the brochure with that misleading information did not cause the loss suffered by the Lawtons because if they, the Norcross's, had seen the brochure before it was published they would not have changed the description of the floor area.

[4] The Judge accepted that that point had been the subject of submissions by counsel for the real estate agent and was not mentioned in the judgment and that the applicable principles were as stated by Wild CJ in Horowhenua County v Nash (No 2) [1968] NZLR 632, which we should add have been approved by this court in Gazley v Attorney-General (1996) 10 PRNZ 47.The Chief Justice said at p633:

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal.Were 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] Paterson J rejected the argument for recall based on the third limb for reasons which he explained as follows:

[16] If I had directed my mind to the matters now raised by Mr Napier, I may have come to a different conclusion on the assessment of the respective fault.However, I would have still apportioned a large proportion of the responsibility to the agents.

[17] Accepting that there was an error in not specifically addressing the point made on behalf of the agents, I am not satisfied that there is a very special reason which justifies the judgment being recalled.In the circumstances it will not be recalled.

[6] There are two further material factors bearing on the exercise of the discretion on the application for recall and on the present appeal.The first is that in the immediately preceding paras [10] to [15] the Judge had traversed the features of the case arising from his consideration of the appeal and which no doubt led him to conclude in para [16] that, if he had specifically directed his mind to the matters then raised by Mr Napier, he would have still apportioned a large proportion of the responsibility to the agents.That is an implicit rejection of any argument based on the causation proposition that the agent should be exonerated and that the Norcross's should bear the loss.And correctly the Judge had emphasised in the appeal judgment, applying Goldsbro v Walker [1993] 1 NZLR 394, 403-404, that in exercising the powers under the Fair Trading Act it is a matter of doing justice to the parties in the circumstances of the particular case and in terms of the policy of the Act and that the court exercising that jurisdiction should not be constrained by consideration of the technical possibilities of contribution between joint and several tortfeasors under the Law Reform Act 1936 or of apportionment under the Contributory Negligence Act 1947.

[7] The second factor is the burden of the costs of the litigation relative to the amounts in issue.There was $46,000 at stake in the District Court and on the appeal the compensation under the Fair Trading Act was set at $36,000 apportioned $27,000 against the agents and $9,000 against the vendors.We were advised at the Bar that the costs of the three parties in the District Court totalled over $100,000.Clearly the Judge was concerned at the costs implications both when he heard the appeal and again at the subsequent hearing of the recall application and application for leave to appeal to this court. On the appeal hearing, and faced with a submission to refer the matter back to the District Court, he said it was a case where further legal expenditure and costs should be avoided, if possible, and he went on to fix the compensation. In para [19] of the present judgment he noted that the amount at issue was small and referred again to the costs of the further hearing.While not specifically mentioned by the Judge in para [17] in declining to recall the judgment, we are satisfied it is reasonable to infer that his anxiety over costs relative to the amount at issue was in his mind.In that regard, too, it was not suggested to the Judge that the agents were pursuing the application for reasons of principle as distinct from financial considerations and Mr Napier fairly advised the court that the agents had been prepared in settlement discussions to accept 50% of the liability so that the amount of compensation involved in issue is on that view no more than $9,000.

[8] Against that background we turn to the present appeal against the refusal to recall the judgment.It is an appeal against the exercise of a discretion. The Judge directed his mind to the recall principles and it comes down to the question of whether we are satisfied that he was plainly wrong in the decision he reached.Where a Judge fails to direct his or her mind to an issue which was properly put before him or her that will always be a reason for the Judge to weigh under the third limb in Horowhenua County and Mr Napier referred us to a number of High Court decisions where the judgments were recalled on that ground:Brake v Boote (1991) 4 PRNZ 86; Matua Finance Ltd v Bank of New Zealand (CP 490/94, Auckland Registry, judgment 23 December 1994);Pine Tree Park Ltd v North Shore City Council (HC 26/96, Auckland Registry, judgment 12 August 1996); Re Kingsbury Holdings Ltd, Vague v McDonald v De Ment (M 824/96, Auckland Registry, judgment 10 March 1998);and Carter v Haines (No 2) (CP248/99, Auckland Registry, judgment 26 November 1999).

[9] Section 27(1) of the New Zealand Bill of Rights Act 1990 affirming the right of every person to the observance of the principles of natural justice by any tribunal which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law, supports that approach.

[10] But in the very unusual circumstances of this case we are satisfied that the Judge was entitled in the exercise of his discretion to refuse leave.It was a Fair Trading Act matter where the court was entitled to take a flexible approach to apportionment.The Judge had traversed various features of the case and that no doubt led to his conclusion that, had he considered matters raised by Mr Napier at the original appeal hearing, he would still have apportioned a large proportion of the responsibility to the agents.And the relatively modest sum that could be regarded as being at stake at a recall hearing could not fairly warrant the extra costs involved.

[11] For these reasons the appeal is dismissed.The respondents are entitled to costs and there will be an order in favour of the second respondents, the Norcross's, for the sum of $3,500 together with all reasonable disbursements including travel costs of counsel as fixed, if necessary, by the Registrar. The Lawtons, the first respondents, through their counsel filed submissions but were given leave not to attend the hearing and the costs in their favour are fixed at $1,500 together with any reasonable disbursements as fixed, if necessary, by the Registrar.

Solicitors

Keegan Alexander Tedcastle & Friedlander, Auckland, for appellants

Peter Newfield, Auckland, for first respondents

Grove Darlow & Partners, Auckland, for second respondents