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High Court of New Zealand Decisions |
Last Updated: 18 June 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2009-485-587
BETWEEN CS DEVELOPMENT NO. 2 LIMITED Plaintiff
AND ALDWYN JOHN COCKBURN AND JANET ELIZABETH COCKBURN AND KEITH IAN JEFFERIES SUED AS TRUSTEES OF THE ALDWYN AND JANET COCKBURN FAMILY TRUST Defendants
Hearing: 18 April 2011
(Heard at Wellington)
Counsel: H. Rennie QC - Counsel for Plaintiff
R.P. Harley - Counsel for Defendant
Judgment: 10 May 2011 at 3:30 PM
JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL
This judgment was delivered by Associate Judge Gendall on 10 May 2011at 3.30 pm under r 11.5 of the High Court Rules.
Solicitors: Treadwells, Solicitors, PO Box 859, Wellington
Foot Law, Solicitors, PO Box 19182, Wellington
CS DEVELOPMENT NO. 2 LIMITED V AJ COCKBURN AND JE COCKBURN AND KI JEFFERIES SUED AS TRUSTEES OF THE ALDWYN AND JANET COCKBURN FAMILY TRUST HC WN CIV-2009-485-587
10 May 2011
Introduction
[1] This judgment relates to a claim by the plaintiff for interest and costs in respect of earlier liability decisions given in these proceedings. The proceedings have a relatively protracted history. The plaintiff’s original claim which involved also an application for summary judgment concerned whether Goods and Services Tax (GST) on a sale of commercial land, buildings and chattels at Oriental Bay, Wellington from the defendant trust as vendors to the plaintiff as purchaser was appropriately rated by the defendant at zero per cent as a going concern. By a judgment issued on 24 July 2009, I found that it was not. I accordingly made an order by way of summary judgment for the delivery by the defendant to the plaintiff of an appropriate GST invoice specifying GST on the transaction as
$555,555.56 and the purchase price net of GST as $4,444,444.44. I also ordered that the plaintiff was entitled to costs on a 2B basis, together with disbursements.
[2] In that 24 July 2009 decision, I also found that the plaintiff was entitled to interest on the GST amount. However, I reserved leave for counsel to approach this Court on issues as to the rate and quantum of the interest to be awarded. In doing so, I noted at [59]:
However, the fact remains that until the defendants issue a proper and accurate GST tax invoice, the plaintiff is unable to lodge a correct GST return, and so the plaintiff has been deprived of the use of any GST tax refund to which it is entitled by the defendants’ failure to issue a correct invoice.
[3] The defendant appealed to the Court of Appeal against both my substantive decision and my decision with regard to the defendant’s liability for interest. By judgment released on 16 August 2010, the majority of the Court upheld my substantive decision, but allowed the defendant’s appeal with regard to its liability for interest: Aldwyn John Cockburn, Janet Elizabeth Cockburn and Keith Ian Jefferies v CS Development No 2 Limited [2010] NZCA
373. The majority concluded at [99]:
We are unable to discern the basis on which interest was awarded in this case. The interest provision in the agreement for sale and purchase appears not to apply to the present situation. The matter has to be remitted to the High Court for quantification of interest anyway. In those circumstances, we consider appropriate appellate response is to allow the appeal on this ground and remit the matter to the High Court for determination as to whether interest is payable, and, if so, from what date and at what rate.
[4] The defendant then applied for leave to appeal to the Supreme Court from that decision of the Court of Appeal. Leave was refused by judgment dated 16 November 2010: Aldwyn John Cockburn and Ors v CS Development No 2 Limited [2010] NZSC 139.
Background
[5] The factual background to this matter is fully traversed in both my 24 July 2009 and the Court of Appeal’s 16 August 2010 decision. However, it is useful to provide a brief summary here.
[6] On 26 May 2007 the defendant agreed in writing to sell its property at 148 Oriental Parade, Wellington (the Property) to Hodge Properties Limited or its nominee (the Agreement). The Property had been subject to a lease from the defendant as lessor now to Torta Holdings Limited (Torta) as lessee. Torta operated a business at the Property, the Parade Café. Torta previously had been the recipient of an assignment of the lease from the original tenants, the AJ & JE Cockburn Partnership.
[7] On 22 June 2007, Hodge Properties Limited nominated Hodge Trustees Services Limited and/or its nominee as purchaser under the Agreement. On 2 July 2007, Hodge Trustees Services Limited agreed with the defendant to vary the Agreement by way of a written Variation Agreement (the Variation Agreement). By that point, due diligence had been completed by Hodge Trustees Services Limited, the Agreement had become unconditional and a deposit had been paid. Under the Goods and Services Tax Act 1985 (the GST Act), 2 July 2007 became the date of supply. The interest rate for late settlement under the Agreement was set at 12 per cent.
[8] The Variation Agreement provided for vacant possession, it reduced the purchase price for the Property from $5,500,000.00 to $5,000,000.00 and provided for the sale to the plaintiff under the Agreement of additional chattels including all chattels associated with the Parade Café business. A second later variation was entered into on 4 July 2007 but this is not material for the present purposes.
[9] On 5 July 2007, Hodge Trustees Services Limited nominated the plaintiff to be the purchaser under the now varied Agreement. On 11 February 2008 the plaintiff entered into an Agreement to Lease the Parade Café with Torta. The lease was to commence on 2 April
2008.
[10] On 19 March 2008, the defendant forwarded a settlement statement to the plaintiff. An amended settlement statement was forwarded on the same day. The amended settlement statement identified GST of $625,000.00 as payable by the plaintiff in addition to the purchase price. However, these settlement statements were incorrect, as the Agreement provided that the purchase price was to be “Inclusive of GST” and not “Plus GST”.
[11] The plaintiff notified the defendant’s solicitors of this error. The defendants’ solicitors replied suggesting that as there was a continuing tenancy, the sale was of a “going concern” and therefore was zero-rated for GST purposes pursuant to the GST Act. The plaintiff rejected this however and further negotiations ensued.
[12] Settlement then took place on 2 April 2008, on a without prejudice basis to the GST issue. The defendant then issued a tax invoice with GST rated at zero per cent and on that basis, they filed their GST return.
Summary Judgment Principles
[13] As this matter before me still involves a summary judgment application, r 12.2(1) of the High Court Rules applies. That rule provides:
12.2 Judgment when there is no defence or when no cause of action can succeed
(1) The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.
[14] The principles of summary judgment have been summarised relatively recently by the Court of Appeal in Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR
307 at [26]:
The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1; (1986) 1 PRNZ
183 (CA), at p 3; p 185. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331; [1979] 3
WLR 373 (PC), at p 341; p 381. In the end the Court's assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).
Counsel’s Submissions and My Decision on the Interest Question
[15] As noted above at [3] on 16 August 2010 the Court of Appeal remitted this matter back to this Court to determine:
a) whether interest is payable; and b) if so, from what date; and
c) at what rate.
Is interest payable?
[16] Before me, the plaintiff contended that its claim was for equitable relief, in that it claimed specific performance of the terms of the Agreement or other relief. Therefore, it says the claim for interest is within the power of this Court under s 87(1) of the Judicature Act 1908, relying on Day v Mead: [1987] 2 NZLR 443 (CA) at 442. Whilst that may be so, and I address that aspect later in this judgment, a better approach in this case is to regard the plaintiff’s claim as one for breach of contract. Addressing this, clause 12.2 of the Agreement provides:
If the supply under this agreement is a taxable supply the vendor will deliver a tax invoice to the purchaser on or before the GST date or such earlier date as the purchaser is entitled to delivery of an invoice under the Act.
[17] Clearly, the defendant did not perform its obligation under this clause. For that breach, as I see it, the plaintiff in effect seeks damages. In this case, that is pleaded in the form of interest for delayed performance. Interestingly, the ADLS standard form of sale and purchase agreement which was used here provides that if GST is required to be paid to the vendor by the purchaser, (ie where the sale price is GST exclusive), interest at the interest rate for late settlement on the amount of GST unpaid is payable (clause 12.1(3)). However, there is no such clause which provides for the payment of interest where the sale price is GST inclusive as is the case here and the vendor fails to provide an accurate tax invoice. I can only presume that is because one scenario causes a direct loss to one party (where the purchaser fails to pay the vendor) and the other an indirect loss to one party (where the vendor fails to provide an accurate tax invoice).
[18] The issue then arises, is interest still payable even where the contract does not provide for the payment of interest? Section 87 Judicature Act 1908 provides this Court with the power to award interest on debts and damages. Here, interest is not claimed on a judgment debt or damages awarded: see the discussion by Tipping J in Glaister v McHaffie (1990) 3 NZBLC 101,880. Section 87(1)(b) Judicature Act 1908 provides that s 87 does not apply in relation to any debt upon which interest is payable as of right by virtue of, inter alia, any rule of law. The rule of law which must be relied on in the present case as I see it is an exception to the general principle that interest is not due on any money secured by contract unless interest is provided for under that contract: see Page v Newman (1829) 9 B&C 380.
[19] There are two exceptions to that rule which arise out of the two limbs of the principle in Hadley v Baxendale [1854] EngR 296; (1854) 9 Exch 341 at 354. This encompasses first, loss reasonably considered to arise naturally from the breach of contract, and secondly, loss that could reasonably be supposed to have been in the specific contemplation of the parties when
they contracted. While, in the past, interest as damages was recoverable under one limb only: see Roberts’ Family Investments Ltd v Total Fitness Centre (Wellington) Ltd [1989] 1
NZLR 15, Dods v Coopers Creek Vineyards Ltd & Co [1987] 1 NZLR 530; Krehic v Clark [1991] 1 NZLR 703; Burrows, Finn and Todd Law of Contract in New Zealand (3rd ed, Wellington, LexisNexis, 2007) at [21.2.3(e)], the New Zealand Court of Appeal has more recently followed the United Kingdom in abolishing that distinction: Clarkson v Whangamata Metal Supplies Limited [2007] NZCA 590, [2008] 3 NZLR 31 at [33] and [36].
[20] A claim for interest under either limb of Hadley v Baxendale is properly a claim for special damages: Sempra Metals Ltd (Formerly Metallgesellschaft Ltd) v Inland Revenue Commissioners [2007] 3 WLR 354 (HL) at [96]; Dods v Coopers Creek Vineyards Ltd & Co [1987] 1 NZLR 530 at 537-538; Krehic v Clark [1991] 1 NZLR 703 at 707. Therefore, that loss must be specifically quantified and proved. In Sempra Metals Ltd, Lord Nicholls of Birkenhead went on to note at [97] (approved by the Court of Appeal in Clarkson v Whangamata Metal Supplies Limited [2008] 3 NZLR 31 at [37]):
The common law’s unwillingness to presume interest losses where payment is delayed is, I readily accept, unrealistic. This is especially so at times when inflation abounds and the prevailing rates of interest are high. To require proof of loss in each case may seem unduly formalistic. The common law can bear this reproach. If a party chooses not to prove his interest losses the remedy provided by the law is to be found in the statutory provisions.
[21] Some authority still exists which appears to limit the scope of the second limb of Hadley and Baxendale. For example, it is useful to note the following statement of Holland J in Krehic v Clark [1991] 1 NZLR 703 at 709:
As I see the position, it is that a plaintiff who is in overdraft or who borrows money because of the failure of his debtor to pay will be able to prove the cost of that borrowed money as special damages and recover it under the second branch of Hadley v Baxendale. On the other hand a plaintiff who is in credit will not be permitted to recover the value of the investment of the money in question by way of interest or otherwise which he would have received had he received the money.
[22] With respect, I cannot see any reason in principle why a lost opportunity to obtain and “invest” money should be treated any differently to a lost opportunity not to lose money. Each ought to be treated the same: see the discussion in Clarkson v Whangamata Metal Supplies Limited [2008] 3 NZLR 31 at [23]-[24]. Therefore, in the present case, if the plaintiff can prove that it forwent the opportunity to invest the substantial amounts that it was supposed to receive as a tax credit, in my view it ought to receive interest in the form of damages.
[23] The discussion provided by McGechan J in Roberts’ Family Investments at 36 is instructive:
Treating the matter as one governed by the second branch of the rule in Hadley v Baxendale, and willingly adopting the same general approach as that taken by Wallace J [in Dods v Coopers Creek Vineyards Ltd & Co] on the question of remoteness, I have no doubt that interest at bank rate is recoverable as damages on arrears ultimately established as at 31 August 1987 down to the date of eventual judgment. (I note that no claim is made to accrued interest as from the precise dates on which payments actually fall due prior to 31 August 1987.) I am likewise satisfied that to this date the rate of 25% per annum claimed is appropriate. That may not hold good into the future, given possible movements in interest rates. My finding therefore simply is in favour of liability for interest at 25% per annum from 31 August 1987 on arrears if any ultimately found due as at that date, down to this date, leaving the appropriate rate(s) between this date and trial for further evidence.
[24] Notwithstanding his Honour’s views on the rates of interest to be charged, I consider those views as to the sensibility of a claim for interest where there is non-payment of money to be apt. Of course, that is not what occurred in the present case. What occurred here was the withholding of a tax invoice from which the plaintiff could have claimed a tax credit. I am satisfied that while that provides a material factual difference, I find no difference in policy or principle to distinguish this situation on that ground.
[25] I turn now to apply those principles to the present case. In doing so, and taking a robust view of the factual situation here, while I note cl 12 of the Agreement expressly provides for the payment of interest to the vendor but not the purchaser, I consider that it would have been within the reasonable contemplation of the parties when they concluded the Agreement that if the defendant was required to and failed promptly to provide an accurate tax invoice, this would mean necessarily that the plaintiff could not receive a tax credit and this would place it out of pocket.
[26] I also accept that in the majority of cases where damages have been awarded on the basis of reasonably foreseeable loss, the circumstances of the case were such that at the time a contract was signed, the defaulting party could see, or was put on notice as to, the effects if payment was not made: Dods v Coopers Creek Vineyards Ltd & Co [1987] 1 NZLR 530. Often, at the time that a contract was formed, a vendor would intimate to a purchaser that if the funds were not received at the time specified that would lead to overdraft problems. In New Zealand Insurance Co Ltd v Harris [1990] 1 NZLR 10, the insurer was on notice that the insured had a finance agreement with a third party financier and, by the insurer failing to pay the insured for damage to his tractor, this would cause delay in his being able to repay the financier. In Krehic v Clark [1991] 1 NZLR 703, the defendant agreed to indemnify the plaintiff for a guarantee given by the plaintiff in a situation where neither the plaintiff nor
the defendant had ready capital immediately available and knew that if the plaintiff was called upon to meet his guarantee he was likely to have to borrow money at interest. The plaintiff was able to prove that he borrowed $15,000 at 22 per cent and broke a term deposit. He succeeded accordingly. However, in Roberts’ Family Investments Ltd v Total Fitness Centre (Wellington) Ltd, it seems McGechan J was satisfied that interest at the bank rate was recoverable without first satisfying himself that this was the actual lost opportunity that would have been within the reasonable contemplation of the parties at the time that they entered into the contract. Therefore, I do not see any reason why the prospect of reasonable foreseeable loss must be expressly put to a defendant at the time of signing. Indeed, in my view that is the nature of loss which would be objectively apparent and thus reasonably forseeable. For these reasons, I am satisfied that interest ought to be ordered in the present case.
[27] As I noted at the outset, the plaintiff has argued principally for equitable relief in this case, in that it claimed specific performance of the terms of the Agreement or other relief. For completeness, I now turn to address these arguments. In claiming equitable relief here, the plaintiff initially argues that its present claim for interest is within the power of this Court under s 87(1) Judicature Act 1908 which provides:
87 Power of Courts to Award Interest on Debts and Damages
(1) In any proceedings in the High Court, the Court of Appeal, or the Supreme Court for the recovery of any debt or damages, the Court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate, not exceeding the prescribed rate, as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment:
Provided that nothing in this subsection shall –
(a) Authorise the giving of interest upon interest; or
(b) Apply in relation to any debt upon which interest is payable as of right, whether by virtue of any agreement, enactment, or rule of law, or otherwise; or
(c) Affect the damages recoverable for the dishonour of a bill of exchange.
[28] The defendants respond to this by contending that s 87 does not apply as the plaintiff’s application here was not for the recovery of any debt or damages. I agree. The plaintiff sought performance of clause 12.2 of the Agreement, that is, delivery of a correct tax invoice. It is reasonably arguable that the recovery of the GST credit was ancillary to that and was not, per se, under the control of the defendants.
[29] However, the plaintiff further argues that since s 16A Judicature Act 1908 provides that in an action for an injunction or specific performance, an award of damages may be entertained in addition, an equitable action for specific performance can encompass a claim for damages. The plaintiff notes that s 16A does not restrict relief to one or other remedy: Brazier v Bramwell Scaffolding(Dunedin) Ltd PC7/2001, 18 December 2001 at [33]. As a claim for damages is incorporated by dint of s 16A it is suggested a court may award interest for the damages due even where an injunction or specific performance is ordered. I agree and I consider this relief is appropriate in the present case. While in this case damages were not expressly pleaded for, apart from the catch all pleading “such further or other relief as may be required to give effect to the provisions of the operative agreement”, I consider that s
16A sufficiently brings them within the purview of what can be ordered here: See Kurth v
McGavin [2007] 3 NZLR 614.
[30] According to the plaintiff, the nub of its claim here was for performance of the defendants’ obligations under the GST Act. The relief sought it says is therefore equitable. As considered by the Court of Appeal, the focus of this proceeding is on the legal obligations of the defendants under the Agreement (at [34]).
[31] In my view, the fact that the defendants did not provide the plaintiff with a proper GST invoice meant that the plaintiff could not, as it was entitled to do, claim the tax back as a tax credit. As it happened at the time, the defendants had themselves obtained the benefit of an improper GST tax credit themselves. The result was clearly to the detriment of the plaintiff. As such, damages are also justified here by way of equitable relief under s 16A, and I consider that by way of damages an award of interest on the GST tax credit amount is appropriate.
From what date?
[32] The purpose of compensation by interest is to compensate the plaintiff for being out of pocket and the defendant also possibly having the corresponding use of that money. Ordinarily, therefore, the appropriate date from which a liable party will be liable will be the date on which the cause of action accrued. However, there is no fixed rule: Wilson & Horton Ltd v A-G [1997] 2 NZLR 513 (CA) at p 530. Any discretion under s 87 or otherwise is to be exercised as the justice of the case requires: Day v Mead [1987] 2 NZLR 443 (CA) at 463.
[33] In the present case, the date on which the cause of action accrued, the settlement date, was not the date on which the plaintiff would have received the tax
credit. Instead, the plaintiff argues that the date that should be looked to is the date on which the defendants received their actual GST advantage being 19 June 2008. This is the date on which the defendants apparently received their GST refund for the corresponding period.
[34] I am not satisfied, however, that that is an appropriate point on which to fix liability. I consider that the appropriate date ought to be the date on which the plaintiff would, in the normal course, have received its tax credit had a proper tax invoice been promptly supplied. That date may or may not be the same. I did not hear argument from counsel for either party on this aspect. There are many variables on which the receipt of a tax credit may depend. For example, the date of expiry of the GST tax period of the claimant, when the GST return in question was lodged, or when it was processed by the Inland Revenue Department.
[35] In those circumstances, I consider that there is an absence of real evidence before the Court as to the appropriate period for which interest is to be paid. I cannot deal with this issue on summary judgment here, but I consider it is properly disposed of pragmatically once further memoranda are supplied by the parties. More on this later in this judgment.
At what interest rate?
[36] The sum on which interest is sought is $555,555.56. As I note above at [3], the majority of the Court of Appeal considered that the interest provision in the Agreement appears not to apply to the present situation. The parties do not dispute that conclusion and, indeed, I agree with it. This is not a matter where interest ought to apply due to late settlement. Rather, settlement has been effected, but the plaintiff has not been able to claim back its GST entitlement.
[37] The plaintiff claims interest at the rate prescribed under the Judicature (Prescribed Rate of Interest) Order 2008. The defendants, however, argue that the plaintiff has provided no evidence of what should be seen as a proper rate. I agree. The basis for determining the appropriate rate is often: Andrew Beck and others McGechan on Procedure (online looseleaf ed, Brookers) at [J87.03(4)]
..... the interest rates the judgment sum could have attracted had it been available for commercial investment (eg term deposit and bond rates and the 90-day bank bill
rate), [or] the interest costs that would have been avoided had the plaintiff had the judgment sum available to reduce indebtedness generally prevailing commercial rates.
[38] Interest under the Order is 8.4 per cent per annum. In light of economic conditions over the past three years, I consider it unlikely that the plaintiff would have received 8.4 per cent per annum in an appropriate investment or would have forgone 8.4 per cent per annum in interest costs on borrowing that it could have otherwise avoided. More evidence on this aspect is required.
[39] The present application before me is one for summary judgment. The quantum of loss must be proved. The material presently before the Court has not fully achieved that in the present case but, in my view, taking a pragmatic approach, this can be remedied. I further note at this point the defendant’s contention before me that “damages” had not been specifically pleaded. I am satisfied, however, that a claim for interest in this case has been sufficiently pleaded, and that “interest as damages” did not have to be specified as the remedy specifically sought: Whangamata Metal Supplies Limited [2008] 3 NZLR 31 at [44].
[40] While I am satisfied that interest ought to be ordered in the present case as I have noted above, I am not satisfied that the issues as to the date from which interest ought to be fixed or the rate at which interest ought to be ordered can be determined on the facts as they are before me. The appropriate course on the present summary judgment application is for counsel now to file memoranda addressing those aspects so that a comprehensive decision can be issued.
[41] On this, the following directions are now made therefore:
(a) Counsel for the plaintiff is to have 10 working days from the date of this judgment to file and serve his memorandum addressing the matters noted at para [40] above; and
(b) Counsel for the defendants is to have a further 10 working days from that date to file and serve his memorandum addressing the matters noted at para [40] above; and
(c) Those memoranda are then to be referred to me and in the absence of either party indicating they wish to be heard on the matter I will decide the question of the quantum of interest to be ordered here on the basis of the material then before the Court.
Counsels’ Submissions and my Decision with Regard to Costs
[42] As I have noted above at [1], I have already found that the plaintiff is entitled to costs on this summary judgment application on a 2B basis. As to this the plaintiff seeks costs for nine days. The defendant argues 5.7 days. The defendant submits that items 4.10,
4.12, 4.13, 4.15 and 2 are not proper costs for the present proceedings. I consider, however,
that the plaintiff’s calculation is accurate. The parties were required for callover on 18 May
2009. Further, an interlocutory application was filed, and heard, for an order that Mr Fairbairn appear and be examined on oath with regard to the plaintiff’s summary judgment application. That application led to a judgment. There is no particular requirement, as contended for by the defendant, that only items 1 to 3 are available as costs on a summary judgment application.
[43] With regard to disbursements, where courier charges are necessary and specific to the litigation they may be covered under r 14.12: Mawhinney v Waitakere City Council HC Auckland CIV-1999-404-1850, 26 September 2007 at [12]. Here the plaintiff has not satisfied me that those disbursements were necessary and specific to the litigation, indeed, the plaintiff has accepted that they ought to be removed from the claim. They are to be so removed.
[44] I accordingly order costs in favour of the plaintiff in the sum of $14,400 claimed by
Mr Rennie QC and disbursements being the court filing fee of $1,200.00.
‘Associate Judge D.I. Gendall’
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