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Boswell v Millar [2014] NZCA 314; [2014] 3 NZLR 332 (10 July 2014)

Last Updated: 30 January 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
22 May 2014
Court:
Randerson, Winkelmann and Lang JJ
Counsel:
Appellant in person (with Mrs Roberts as McKenzie friend) S S Chatwin and D S Quinn for Respondent
Judgment:


JUDGMENT OF THE COURT

  1. The appeal is dismissed.
  2. The application for leave to adduce further evidence on appeal is dismissed.
  1. Counsel for the respondent may apply to have Mr Millar’s personal representatives substituted as respondent if required.
  1. The appellant must pay costs to the respondent for a standard appeal on a Band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

[1] Mr Millar is now deceased. During his life he had extensive dealings with Ms Boswell in respect of her lease of part of his property. Although their relations were initially good, they ultimately deteriorated over the issue of whether Ms Boswell had a right to purchase the leased property and litigation ensued. Although those proceedings were settled the implementation of the settlement has itself led to multiple disputes, some of which led to the issue of the proceeding now the subject of this appeal. In a judgment dated 10 April 2013 Katz J dismissed claims Ms Boswell brought against Mr Millar, and the more limited counterclaim brought by Mr Millar against Ms Boswell.[1] Ms Boswell now appeals the decision of Katz J.

Relevant background

[2] Ms Boswell initially leased land (the property) from Mr Millar by deed of lease (the lease) dated 19 June 2000. The lease contained an option for her to purchase the land during the term of the lease or any renewed term. In 2004 a new lease document was signed between the two, which did not contain an option to purchase. A dispute arose as to whether the 2004 lease was a renewal of the 2000 lease and incorporated this option to purchase. Ms Boswell issued proceedings alleging that it did. In 2008 those proceedings were settled on the first day of trial on the following terms:
[3] The property formed part of the land comprised in an existing certificate of title, and accordingly, either a subdivision or a boundary adjustment was required so that it could be conveyed to Ms Boswell.
[4] Further disputes then arose between Mr Millar and Ms Boswell, this time as to the meaning and effect of the settlement agreement, these disputes then spinning off into still further disputes. Ms Boswell issued proceedings alleging various breaches of contract and claiming reimbursement of rent. Mr Millar counterclaimed for an equitable interest in the purchase price or, in the alternative, rent. The issues had reduced by the time of trial. Katz J stated the issues she had to resolve as follows:[2]

(a) Did Mr Millar breach the Settlement Agreement by failing to cooperate with Ms Boswell in making an application for subdivision? If so, what relief is appropriate?

(b) Did Mr Millar breach the Settlement Agreement by entering into it in the knowledge that he would not be entitled to subdivide the Property?

(c) Is Mr Millar liable for legal and other costs incurred by Ms Boswell in attempting to remedy alleged breaches of the Settlement Agreement by Mr Millar, in circumstances where settlement has now been reached in relation to the alleged breaches?

(d) Is Ms Boswell entitled to a refund of rent in the sum of $5,250?

(e) Is Mr Millar entitled to rent or, alternatively, interest on the purchase price for the period pending settlement of the sale?

[5] Katz J dismissed all of Ms Boswell’s claims, and Mr Millar’s counterclaim. Ms Boswell however has appealed each finding of the Judge dismissing her claim. She contends that the Judge ignored, overlooked or misconstrued relevant evidence and as a consequence erred in her factual findings. She also contends that the Judge erred in law in some of her findings. Finally, she argues that the Judge was biased against her.
[6] Ms Boswell filed additional evidence in this Court, which she said demonstrated that the Judge made errors in her evidential findings. At the commencement of the hearing, after hearing from Ms Boswell, we refused leave to admit the further evidence on the grounds that it was not fresh evidence – it was available to Ms Boswell at the time of the initial hearing.[3] We noted that Ms Boswell was well able to adduce this evidence at the High Court hearing, she was legally represented, and had received Mr Millar’s briefs of evidence in advance of trial so knew the facts at issue.
[7] Ms Boswell is exercising her right to a general appeal, so that this appeal proceeds by way of re-hearing. She is entitled to judgment in accordance with the opinion of this Court, even where “that opinion is an assessment of fact and degree and entails a value judgment”.[4]

First ground of appeal: did the Judge err in finding that Ms Boswell had not established that Mr Millar failed to cooperate in making an application for subdivision?

[8] The settlement agreement required the parties to “cooperate in forthwith making application to the Hauraki District Council for subdivision resource consent in respect of the property”. It also provided that Mr Millar was responsible for the costs of the consent application and any other costs or contributions associated with the subdivision.
[9] Mr Millar lodged his application. It soon became apparent that the application for subdivision was not straightforward. Because Mr Millar had undertaken two previous subdivisions, he had no more subdivision “rights” in terms of the Hauraki District Plan. Further subdivision on the relevant land was therefore a discretionary activity. Following a hearing the application was declined by the Hauraki District Council. At Ms Boswell’s request, Mr Millar then cooperated in an appeal against that decision to the Environment Court, although declining to fund the appeal. Ultimately the appeal was settled and resource consent was granted on the basis that Ms Boswell surrendered a resource consent she had previously obtained, and gave up the right to subdivide adjoining land she owned.
[10] At the High Court hearing, Ms Boswell argued that Mr Millar had breached his duty to cooperate in relation to the subdivision application by not consulting with her before he filed his application, by not responding appropriately to a negative planner’s report from the Council which clearly signalled that the application would be declined, by not engaging counsel to appear at the hearing and finally by not funding an appeal. It is not in dispute that Mr Millar did not actively seek Ms Boswell’s or her advisers’ input into the application for subdivision before he filed it, and that he appeared at the hearing without legal representation or expert planning assistance.

Judge’s findings

[11] The Judge said the duty to cooperate must be interpreted in a pragmatic way, taking into account the relevant factual context.[5] The property transaction involved was of relatively modest value and little or no input was actually needed from Ms Boswell in relation to the application. The information required for the application was either obtainable from Council records, or was in Mr Millar’s power and control as land owner. However Mr Millar’s surveyor was authorised to contact Ms Boswell or her advisers as appropriate or necessary.
[12] Ms Boswell was also entitled to put in her own submissions if she believed there were any additional matters which should have been brought to the Council’s attention, and she chose not to do so. The Judge said Ms Boswell knew of the content of the application and the negative planner’s report prior to the Council hearing, and that the application faced serious obstacles due to the fact that Mr Millar had no more subdivision rights. She did not however offer at that stage to surrender one of her own subdivision rights as a possible solution.
[13] The Judge was also satisfied that the duty to cooperate did not require Mr Millar to incur the significant expense of retaining counsel to appear at the Council hearing or to pursue an appeal. Mr Millar was an experienced former local authority councillor who chose to represent himself. The surveyor retained by Mr Millar supported Mr Millar’s decision to appear for himself.
[14] The Judge rejected a submission that Mr Millar deliberately sabotaged the application in this fashion. She said there was no reason for him to do so.
[15] Finally, the Judge held that even if there was a lack of cooperation on Mr Millar’s part, Ms Boswell had failed to establish that such a breach caused the application to fail in circumstances where it would otherwise have succeeded. Ms Boswell had identified only minor criticisms of the content of the application, and those were matters which the Judge considered would not have impacted on its success. She noted that even on appeal, with a highly experienced resource management barrister advocating for the subdivision application, the Council was unwilling to grant the subdivision application on its own merits.

Argument on appeal

[16] Ms Boswell submitted that the Judge erred in finding that the obligation to cooperate:
[17] Ms Boswell also argues that the Judge erred in finding that there was insufficient proof that the failure to cooperate caused loss. The evidence showed that it was only as a result of the legal pressure executed by Ms Boswell that the application succeeded. The fact the application failed was sufficient evidence that it was materially deficient. If there had been legal or planning involvement at the hearing, these advisors might have come up with the solution ultimately arrived at, of Ms Boswell’s surrendering her subdivision right, or they might have suggested that the parties pursue the boundary adjustment option in preference to subdivision.

Analysis

[18] The contract did oblige both Mr Millar and Ms Boswell to cooperate in making an application to the Hauraki District Council for subdivision resource consent. However, that did not require that they work together on the application. The duty to cooperate rather requires that both parties do what is necessary on their part to carry out or achieve the agreed thing.[6] It was for Mr Millar as the land owner to make the application. If Ms Boswell needed to do something for the application, she was likewise obliged to do it. As it happens, there was nothing she was required to do for the application. The Judge was correct to find that the content of the duty to cooperate can only be understood in the context of the contract, and the value of the transaction was part of that context. This accords with standard principles of contractual interpretation.
[19] Contemporaneous correspondence supports Ms Boswell’s contention that she and her advisers were not provided with a copy of the application before it was filed. But it also establishes that they were provided with an opportunity to have input into the application if they wished. Mr Millar provided Ms Boswell’s solicitors with his surveyor’s contact details, the invitation to contact them implicit.[7] Although Mr Millar did not require her participation in the preparation of the application, he provided her with the opportunity to involve herself.
[20] As the Judge found, Mr Millar had access to the necessary information to make the application. Ms Boswell accepted before us that she did not produce any evidence at trial that there were deficiencies in the application which led to its refusal. Although we note that she called a retired surveyor, Mr Morrison Dunwoodie, to give evidence on her behalf at the hearing, he did not identify any deficiency in the application which was capable of being remedied.
[21] Ms Boswell’s argument that there must have been a deficiency because the application did not succeed is flawed. As the Judge observed, even on appeal, with the assistance of expert assistance, Ms Boswell was unsuccessful until the surrender of her subdivision rights in return for the consent was negotiated.
[22] Ms Boswell also complains of receiving very late notice of the content of the application and the hearing. As a result, she says that she was not able to participate at the hearing. However here the contemporaneous records contradict her account.
[23] As observed earlier, Mr Millar provided his surveyor’s details to Ms Boswell. There is no evidence that Ms Boswell or her solicitors ever made any attempt to contact the surveyor to have input into the process. The surveyor filed an application for resource consent for the subdivision on 22 July 2008. On 12 August 2008, the Hauraki District Council sent a copy of part of that application directly to Ms Boswell. This included advice as to the closing date for filing submissions. The application as filed expressly addressed the issue of why a subdivision was preferred over a boundary adjustment, and made the case for the subdivision being approved.
[24] On 19 August 2008 Mr Millar’s solicitors wrote to Ms Boswell’s solicitors confirming that the resource consent application had been filed, and also advising them that the Council had declined to accept the application on a non-notified basis. Mr Millar’s solicitor observed that the settlement agreement gave Ms Boswell the option to elect a boundary adjustment, and sought advice as to whether she now wished to proceed down this path.
[25] On 28 August 2008 Mr Millar’s surveyor, Mr Grant Sutherland, reported to Mr Millar that there were no guarantees that a positive outcome would be achieved with the application, the difficulty hinging on the fact that Mr Millar had already performed a subdivision that was non-complying back in 1993. The surveyor suggested a boundary adjustment.
[26] This report was provided by Mr Millar to his own solicitors, Tompkins Wake. They responded to him by letter dated 2 September 2008 that Ms Boswell had declined to proceed on the basis of a boundary adjustment so that there was no alternative but to proceed with the subdivision application despite the associated problems.
[27] Although Ms Boswell suggested during the course of the hearing before us that she did not have a strong preference for a subdivision over a boundary adjustment, we are satisfied that the evidence establishes that she had a strong preference for a subdivision. That accords with the provision in the settlement agreement which envisaged the boundary adjustment as a “fall back option”.
[28] The subdivision application was publicly notified by the Hauraki District Council on 19 September 2008, and advertised in the local newspaper. The public notification recorded that submissions were to close on 17 October 2008.
[29] On or about 17 November 2008 both Mr Millar and Ms Boswell were provided with a copy of the Council planner’s report recommending against approval of the subdivision. They were both also on that day formally advised that the hearing of the application was to be on 24 November 2008.
[30] Ms Boswell’s evidence was that she did not receive any advice of the fact of the filing of the application or its content until she spoke with the Council in late November. Her solicitors did not tell her, she says. She did not receive the Council’s advice. By late November there was too little time to prepare for the hearing or file submissions. When she went to the hearing, she was told that she was not permitted to speak or make any submissions.
[31] What emerges from the chronology we have outlined here is that Mr Millar did advise Ms Boswell, through her solicitors, of all relevant information. Not only was this publicly notified, together with dates for the filing of submissions, Ms Boswell was advised directly by the Council. If Ms Boswell and her advisers so organised themselves that they did not receive any of these communications providing the necessary detail, this does not evidence a lack of cooperation by Mr Millar. We agree with the trial Judge that Ms Boswell and her advisers were provided with ample opportunity to enable them to participate as they chose in the subdivision process.
[32] We then come to the issue of Mr Millar’s failure to engage counsel and/or a planner at the hearing. Mr Millar was experienced in these matters because he had been a councillor for six years. The evidence established that he discussed with Mr Sutherland whether he could handle the matter on his own at the hearing, and Mr Sutherland supported his decision to do so. This was because all of the information and submissions that could be put forward in support of the application was included in the application and other supporting documents. The evidence also strongly suggests that nothing a representative of Mr Millar might have said on that day would have made any difference. We note, as did the trial Judge, that even when Ms Boswell engaged a senior resource management lawyer for the appeal, he was not able to make any further headway on the issue until the negotiated settlement.
[33] The next point raised by Ms Boswell is Mr Millar’s failure to actively involve himself in the appeal. Again there is no suggestion that Mr Millar’s approach to the appeal (authorising it to proceed but not participating in the instruction of counsel) impacted upon its progress in any way.
[34] Ms Boswell also argued that there was evidence that Mr Millar’s failure to cooperate with the planning application caused her loss, pointing to the rights she had to surrender to obtain the consent. This point exposes an illogicality in Ms Boswell’s argument. She says that if Mr Millar had been legally represented at the initial Council hearing, the original application might have succeeded because the resolution finally arrived at could have been put forward at that time. But she also says that the rights she surrendered are evidence that Mr Millar’s breach of the agreement caused loss. The reality was that unless Ms Boswell surrendered those rights the application could not succeed, no matter who advocated for it. Ms Boswell always had the option of proceeding with a boundary adjustment, rather than a subdivision. It was her decision to take the subdivision consent in exchange for the rights she surrendered.
[35] For these reasons we find no error in the reasoning of Katz J. Having considered the matter and the evidence before her, we agree with her finding that there is no evidence of a failure to cooperate on the part of Mr Millar.

Second ground of appeal: did the Judge err in holding that Mr Millar did not breach the settlement agreement by entering into it knowing that he would not be entitled to subdivide his land?

[36] Ms Boswell alleged in the proceeding that Mr Millar breached the settlement agreement by entering into it knowing that he would not be entitled to subdivide his land so as to give Ms Boswell title of the property.

Judge’s findings

[37] The Judge said that as a matter of law she had real doubts as to whether Mr Millar could have breached the settlement agreement based on his state of knowledge prior to that agreement being entered into. In any event she did not accept that he knew at the time of signing the settlement agreement that the subdivision application would fail. As it was a discretionary application there was at least some prospect it would succeed, but both parties knew that success could not be guaranteed. That is why the settlement agreement included boundary adjustment as an alternative option, at Ms Boswell’s election. The Judge accepted Mr Millar’s evidence that he would not have incurred the substantial cost associated with the application if he knew that it would be a total waste of time and money. If he had known that, then his logical course would have been to inform Ms Boswell of this and include only the boundary adjustment option in the settlement agreement.
[38] Ms Boswell says that the Judge erred in finding that Mr Millar did not know that the subdivision might not proceed. The surveyor Mr Millar employed stated that the problem was that Mr Millar had made two prior subdivisions in respect of the same property in a short period of time. Ms Boswell argues that there was a clear inference available that since Mr Millar was a councillor for six years and as the Judge said herself “an experienced Council member himself” he must have known that the application would not be successful. He knew that Ms Boswell had no experience in Council and/or subdivision matters, therefore the evidence established that he was well aware that the subdivision application would or could be turned down.

Analysis

[39] We share the trial Judge’s reservations that the allegations made by Ms Boswell in her statement of claim could ever found a good cause of action on the facts as pleaded by her. But in any case, as the trial Judge said, Mr Millar’s evidence was that he did not know that the application for subdivision had no prospects of success. We consider she was right to accept this evidence as Mr Millar’s conduct was consistent with this – he expended considerable effort and expense in pursuing the subdivision. Nor is there any evidence the subdivision had no prospect of success. Ms Boswell is applying the benefit of hindsight. The surveyor’s advice to Mr Millar was that the subdivision faced real obstacles and he could not guarantee a successful outcome. He did not say that it would certainly fail. It failed because of the view the Council took in respect of a discretionary application. As the trial Judge found, it must have been in both parties’ contemplation that the application for subdivision might not be successful, and that is why the boundary adjustment was reserved as an alternative route to effect the settlement.
[40] The evidence produced by Ms Boswell and the cross-examination undertaken on her behalf, simply did not reach the evidentiary threshold to establish that Mr Millar knew before he entered into the settlement agreement that the subdivision would not be successful.

Third ground of appeal: did the trial Judge err in finding that Mr Millar was not liable for legal and other costs incurred by Ms Boswell in connection with issues now settled?

[41] Ms Boswell has alleged a number of other breaches of the settlement agreement which were all resolved prior to trial. At trial, the issue remaining in relation to these matters was whether she was entitled to recover costs, primarily legal costs, that she had incurred in resolving the issue. Katz J set out the claims in her judgment:[8]

(a) Expenses relating to a water easement dispute - $15,558 (being surveyor fees of $3,932 and legal costs of $11,626).

(b) Expenses relating to dispute over location and size of a new water pipeline installed to service the Property - $4,194 (being Spencer legal costs of $2,000 and surveyor/plumber fees of $2,194).

(c) Expenses relating to dispute over GST - $4,319 (being accounting fees of $2,319 and Spencer legal fees of $2,000).

(d) Expenses relating to dispute as to who was liable for making the house code compliant - $1,750 (being Spencer legal costs).

[42] The relevant background to each of these claims is as follows.

Water easement issues

[43] The application for subdivision ultimately approved by the Environment Court included a water easement over Mr Millar’s land to provide water supply to the property to be sold to Ms Boswell. The easement followed an existing water supply line to the property which crossed Mr Millar’s land and land owned by his daughter. In September 2010 Mr Millar applied to the Council for an order amending the subdivision plan to remove that existing water easement. Although the Council agreed to the water easement being removed, it told Mr Millar that he would have to provide an alternative water supply to the house. A dispute arose as to where this alternative water supply was to be situated, and who was to be responsible for the cost of it.
[44] Although the parties were scheduled to attend a judicial settlement conference in relation to this issue on 19 October 2011, the day before the conference they reached a compromise which required Mr Millar to construct at his own cost an underground water supply connection to the property, following the path that had originally been suggested by him. The consent orders also provided that if that proved not possible, the previous water easement was to be reinstated. The agreement as recorded in a joint memorandum of counsel expressly provided that all issues relating to costs “including for breach of the settlement agreement” remain unresolved.

Issues relating to location and size of a new water pipe

[45] After the making of the consent orders, Mr Millar proceeded to install the water pipe. The water pipe initially installed by him had a 15 mm internal diameter. Ms Boswell insisted that that was inadequate for the needs of the property and said that if Mr Millar did not dig up the 15 mm pipe and replace it with a 25 mm one she would take the issue back to Court. Within 14 days of Ms Boswell raising the issue, Mr Millar had dug up the 15 mm water pipe and replaced it with a new 25 mm pipe at his own expense. There was a side issue in relation to the water pipe which was that a short portion of it diverted from the agreed pathway and went across Mr Millar’s land. This error, according to Mr Millar, was that of his contractor. Ms Boswell insisted the pipe be moved, and Mr Millar attended to that. Ms Boswell sought to recover the costs she incurred in relation to those issues.

GST

[46] Ms Boswell alleged that she could not claim Goods and Services Tax from the purchase of the property because of delays in the subdivision process. This was an allegation she maintained in her fourth amended statement of claim, claiming $36,000 for it. Ultimately, she withdrew the claim.
[47] There was also a dispute over the proportion of purchase price that should be attributable to the house and the curtilage. Ms Boswell took the position that the sum of $100,000 should be attributed to this portion of the property whilst Mr Millar took the position that the sum of $160,000 should be attributed to it. The issue was ultimately settled on the basis that the sum of $130,000 would be attributed to the house and curtilage. Ms Boswell claimed accountancy and legal costs in respect of the GST dispute.

Compliance issues relating to the house

[48] The settlement agreement included a provision that the agreement for sale and purchase of the property was to be the standard ADLS form. That form included a warranty that the house complied with all relevant consents and requirements.
[49] The house had been moved on to the property by Ms Boswell. Mr Millar’s evidence was that in 2001 he had reached an agreement with Ms Boswell to the effect that she would complete the last minor work required to render the house compliant. Mr Millar had understood that it was compliant as Ms Boswell’s then partner, who was at the time a co-lessee, had told him that the work had been completed and the house was compliant. The ADLS agreement placed that obligation on Mr Millar. Mr Millar said that when he signed the settlement agreement he did so on the understanding that there were no outstanding compliance issues relating to the house. He paid the $3,407 required to make the house compliant but without an admission of liability. Ms Boswell claimed legal costs of approximately $1,750 which she incurred in negotiating the outcome.

Analysis

[50] The Judge rejected each of these claims for costs on the basis that they were not legally claimable as damages. She was right to do so. Costs incurred in pursuing claims, whether within or without the context of court proceedings are not recoverable as damages for breach of contract. If the parties pursue claims through the courts to successful judgment, there is legislation which allows for some of those costs to be compensated through costs and disbursements awards.[9] Ms Boswell did not pursue these claims through to a successful judgment. She compromised them or she withdrew them. She is not entitled to costs and disbursements in respect of these claims. To recover them she must show that she is entitled to them as damages. The courts have consistently rejected the notion that such costs are recoverable as a head of damage because they are too remote – they are losses flowing from steps taken by Ms Boswell to enforce her contractual rights, rather than flowing from the breach itself. As Henry J stated in Herbison v Papakura Video Ltd (No 2):[10]

To hold otherwise would make solicitor/client costs recoverable as damages for breach of contract as a matter of principle (being a natural consequence reasonably expected to flow from the breach). Such is not the law as I understand it.

Fourth ground of appeal: did the trial Judge err in finding that Ms Boswell was not entitled to a refund of rent of $5,250.00?

[51] Ms Boswell paid rent to Mr Millar from 1 April 2007 to 1 February 2008, a total of $5,250.00. In the High Court she sought a refund of that amount, invoking the provisions of a consent memorandum in the earlier proceedings dated 27 March 2007.
[52] Paragraph 1(b) of that memorandum provided:

For so long as she is in possession of the property the defendant shall pay rental of $487.13 (plus GST) per month ... Should it be determined that the plaintiff had the right to exercise an option to purchase, any rental paid by her from 1 April 2007 shall be set-off against the purchase price payable under the option.

[53] In the High Court Ms Boswell argued that the consent orders did not merge in the settlement agreement, but that agreement did “determine” that she had the right to exercise an option to purchase.
[54] The trial Judge rejected the argument that the settlement agreement determined that Ms Boswell had a contractual option to purchase under the lease. First, the agreement represented a compromise of the parties’ rights not an acknowledgment or determination of them. Secondly, it gave Ms Boswell a right to purchase the property for $288,000 (GST included). The option to purchase under the lease that Ms Boswell contended existed, was an option to purchase for approximately $140,000.
[55] On appeal Ms Boswell advances the same arguments in support of her contention that the Judge erred in rejecting her claim.
[56] The Judge was correct to reject this claim. The settlement agreement settled “all matters” on the terms contained in it. The settlement agreement plainly was not a determination that Ms Boswell was entitled to the option she had contended for. It recorded no more than the parties’ fresh agreement to resolve the dispute between them on the terms set out in the agreement.

Fifth ground of appeal: the Judge was biased

[57] We address this as a ground of appeal although an argument of bias was not presented as a standalone ground. Rather Ms Boswell simply asserted at various points in her argument and written submissions that the Judge was biased. The evidence of bias that Ms Boswell points to is contained in the judgment. She says that the Judge rejected her claims, accepted Mr Millar’s evidence, and referred to him in more favourable terms in the judgment than Ms Boswell. We have considered the judgment of Katz J. We find no evidence of bias. It is a careful judgment, expressed in conventional terms. To the extent that Mr Millar’s evidence was accepted, the Judge provided her reasons for this. This ground of appeal also fails.

Result

[58] Ms Boswell’s appeal is dismissed. Ms Boswell must pay costs to the respondent for a standard appeal on a Band A basis with usual disbursements.
[59] Counsel for the respondent may apply to have Mr Millar’s personal representatives substituted as respondent if required.


Solicitors:
Chatwin Legal Ltd, Hamilton for Respondent

[1] Boswell v Millar [2013] NZHC 703.

[2] At [5].

[3] Court of Appeal (Civil) Rules 2005, r 45(1) allows the Court to receive evidence not adduced at first instance, where that evidence is fresh, credible and material: Erceg v Balenia Ltd [2008] NZCA 535 at [15] and Aotearoa International Ltd v Paper Reclaim Ltd [2006] NZSC[2006] NZSC 59; , [2007] 2 NZLR 1 at [6] fn 1. Evidence will not be fresh if it could have been produced at trial with reasonable diligence.

[4] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

[5] Boswell v Millar, above n 1 at [20].

[6] Mackay v Dick (1881) 6 App Cas 251 (HL) at 263; and Devonport Borough Council v Robbins [1979] 1 NZLR 1 (CA) at 23 per Cooke and Quilliam JJ.

[7] The chronology that emerges from that correspondence establishes that in February 2008 her solicitors were advised, well in advance of the filing of the application, of the name of the surveyor that Mr Millar proposed to engage. By letter dated 15 April 2008, Mr Millar’s solicitors again provided Ms Boswell’s solicitors with the contact details for that surveyor. The surveyor was also invited to contact Ms Boswell if he required detail.

[8] Boswell v Millar, above n 1, at [28].

[9] High Court Rules, rr 14.1–14.17.

[10] Herbison v Papakura Video Ltd (No 2) [1987] NZHC 366; [1987] 2 NZLR 720 (HC) at 735.

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