Governors Limited v Anderson CA94/04 [2005] NZCA 426 (19 December 2005)

Last Updated: 23 January 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA94/04

BETWEEN GOVERNORS LIMITED First Appellant

AND STEPHEN KEVIN CHAMBERLAIN Second Appellant

AND GEORGE ALBERT ANDERSON AND MARGARET ADAIR ANDERSON First Respondent

AND THOMAS MACKINNON ANDERSON Second Respondent

Court: William Young, O’Regan and Robertson JJ

Counsel: D G Dewar and J C Moore for First and Second Appellants

N Levy for First and Second Respondents

Judgment: 19 December 2005

_{JUDGMENT OF THE COURT ON APPLICATION FOR RECALL}

_{The judgment is recalled and replaced with the judgment attached.}

REASONS

(Given by Robertson J)

[1] Following a hearing in June 2005, in a reserved judgment delivered on

16 August 2005 the appeal was allowed and the damages awarded to the appellant in the High Court were increased.

GOVERNORS LIMITED AND ANOR V GEORGE ALBERT ANDERSON AND MARGARET ADAIR ANDERSON AND ANOR CA CA94/04 19 December 2005

[2] In a memorandum of 8 September 2005 Mr Dewar drew attention to the fact that there was an incorrect assumption made in [55] of the judgment as to the appropriate base figure for calculating damage. On its face the Court had treated a sum as being a monthly figure but in fact it was related to a two week period.

[3] By minute of 13 September 2005, we indicated that we would treat the memorandum as an application for recall and hold a hearing.

[4] When the matter came on for hearing both parties sought to relitigate a multitude of issues arising out of the judgment.

[5] In the course of the hearing on 22 September the Court made clear that in the recall our concern was to deal only with the specific issue of possible miscalculation and not to revisit any other parts of the judgment.

[6] There was subsequently an application for leave to adduce further evidence by the appellants. This was opposed. In terms of our previous indication we are unwilling to contemplate that course of action.

[7] As is always the case, an assessment of damages is more than a mere mathematical exercise. It is an assessment or judgment based on the evidence of the appropriate recompense for a loss which has been occasioned.

[8] It is clear that in [55] of the original judgment, as acknowledged by both counsel, the measure which we articulated had an error in that the sum used related to a fortnightly period and not a monthly period. But the critical factor is that in [56] we concluded that $65,000 was the appropriate sum to cover the period of the second eviction.

[9] Mr Dewar’s position was that on the recall application we should merely substitute the one figure for the other and extrapolate that for the period to reach damages of $129,000. Ms Levy submitted that our approach was fundamentally flawed in that there had not been any allowance for overheads including particularly replenishing stock which had severely distorted the picture. Her contention was that

the figure should in fact have been $51,838 on the basis of a monthly starting figure of $9,425.

[10] We are satisfied that we did treat the fortnightly figure as a monthly figure and that was an error. It is also clear that we failed to make any allowance for stock which must be a factor in a period as great as five and a half months.

[11] Accordingly we have reached the view that an appropriate monthly starting figure allowing for those contingencies is $20,000. We have accordingly recast [55] and [56] of the judgment to reflect that situation with consequential effects on the judgment which is now reissued contemporaneously with this judgment.

[12] We make no orders as to costs in respect of the recall and do not alter the costs orders as originally made.

Solicitors:

Thomas Dewar Sziranyi Letts, Wellington for Appellants

Sladden Cochrane & Co., Wellington for Respondents