Westbury Thoroughbred Ltd v Webster aka Watson [2012] NZHC 2689 (15 October 2012)

Last Updated: 23 October 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-005886 [2012] NZHC 2689

BETWEEN WESTBURY THOROUGHBRED LTD First Plaintiff

AND WATSON BLOODSTOCK LTD Second Plaintiff

AND RUSSELL MALCOLM WARWICK, LUKE LILLINGSTON, JOHN FOOTE AND HENRY PLUMTREE

Third Plaintiffs

AND NZ THOROUGHBRED HOLDINGS AND WESTBURY THOROUGHBREDS LTD Fourth Plaintiffs

AND WESTBURY THOROUGHBREDS LTD Fifth Plaintiff

AND MARGARET MARY-JEAN WEBSTER AKA MARGARET WATSON

Defendant

Hearing: 15 October 2012

Appearances: P T Finnigan for the Plaintiff

N Carter for the Defendant

Judgment: 15 October 2012

_{JUDGMENT OF GILBERT J}

This judgment was delivered by me on 15 October 2012 at 2.45 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:

Counsel: P T Finnigan, Auckland: [e-mail]

_{N Carter, Auckland: [e-mail]}

WESTBURY THOROUGHBRED LTD V WEBSTER AKA MARGARET WATSON HC AK CIV-2011-404-

005886 [15 October 2012]

[1] The plaintiffs claim agistment fees and service fees allegedly owing by the defendant. The first plaintiff has retained a number of the defendant's bloodstock as security pending payment of the debt and ongoing agistment charges.

[2] The defendant claims that no service fees are outstanding in respect of one of her mares and that all monies outstanding on two other mares have been tendered but wrongfully refused. She claims that the first plaintiff has wrongfully retained these mares and three of their progeny, being two fillies and a colt. She counterclaims in the sum of $160,000 being her estimate of the value of the progeny the mares would have produced had they been serviced. She also counterclaims for any losses on resale of the two fillies and the colt. She claims that these progeny are subject to sale contracts that are now in jeopardy because the first plaintiff refuses to release them. The defendant also claims general damages of $10,000 and punitive damages of up to $40,000 for the first plaintiff’s wrongful retention of the bloodstock and for branding them with the Westbury brand.

[3] The plaintiffs sought further particulars of the defendant’s statement of defence and counterclaim by notice dated 30 July 2012 and they sought a response within five working days. The defendant provided limited particulars by letter dated

3 August 2012 but the plaintiffs did not consider these to be adequate. They therefore filed the present application for particulars on 9 August 2012. The defendant provided some, but not all, of the further particulars requested by letters dated 15 August 2012 and 23 August 2012. The defendant considered that no further particulars were required. The matter was listed for hearing today to determine whether the plaintiffs are entitled to the further particulars they seek.

Statement of defence

Paragraph 9

[4] Paragraph 9 of the statement of claim alleges:

No arrangement exists between Westbury for Ms. Watson to have failed or omitted to pay her debt to Westbury and the other plaintiffs.

[5] The defendant denies that allegation and says:

it was an agreed oral term of each written and oral service agreements and the agistment agreements that the first plaintiff would be paid as the horses and/or progeny were sold. She further says it was an implied term that she would be able to pay her business expenses before paying the plaintiff.

[6] Mr Carter, for the defendant, acknowledged at the hearing today that the plaintiffs are entitled to the further particulars sought by the plaintiffs in relation to the alleged oral term. This was an appropriate concession; such particulars are required to fairly inform the plaintiffs and the Court of the defence. Mr Carter had thought that he had provided these particulars but acknowledged at the hearing that he did not do so.

[7] The plaintiffs also seek particulars of the alleged implied term. Mr Carter confirms that the only facts relied on by the defendant in support of her implied term allegation are those set out in his letter of 15 August 2012. Mr Finnigan accepts that in the light of this confirmation, no further particulars are required.

Counterclaim

Paragraph 1.4 and 1.5

[8] These paragraphs read as follows:

1.4 In addition the defendant has sold two fillies and colt (referred to above) for $23,132.74 and AUD$70,000 respectively and these sales are now in jeopardy as a result of the first plaintiff illegally retaining them.

1.5 The first plaintiff has branded the above progeny with its own brand without permission from the defendant despite the defendant’s specifically requesting in writing, via Carter & Partner’s letter dated 13 June 2012, that the progeny be branded with her own brand.

[9] The plaintiffs seek particulars of the breakdown of the sale prices of each progeny and deductions made by the defendant for expenses, not just business expenses. The plaintiffs argue that these particulars are required to test the defendant’s adherence to the implied term asserted by her. This is not the proper purpose of particulars, the object of which is to ensure that the plaintiffs and the Court are fairly informed of the claim being advanced. In my view, the particulars provided in [1.4] and [1.5] of the counterclaim are adequate for this purpose.

Paragraph 1.7

[10] This paragraph of the counterclaim reads as follows:

1.7 The defendant claims for possession of the above mares and progeny and claims for punitive damages of up to $40,000.00 and $10,000.00 for general damages in respect of the bloodstock being illegally retained and the progeny branded with Westbury’s brand without permission.

[11] The plaintiffs seek further particulars of the facts relied on by the defendant “to underpin her pleading of illegality and branding without permission”. In my view, the defendant has made her position sufficiently clear. Her claim is that the plaintiffs have retained her bloodstock and branded them with the first plaintiff’s brand without her permission and without any right to do so. I do not consider that further particulars are required.

[12] The plaintiffs also seek particulars of the facts relied on by the defendant to support her claim for general damages and punitive damages. Again, I consider that the particulars provided are sufficient. The defendant bases her general and punitive damages claims on her allegation that the plaintiffs have unlawfully retained her bloodstock and branded them with the Westbury brand. Mr Carter confirms that these are the material facts the defendant will rely on to support her counterclaim for general damages and punitive damages.

Result

[13] The defendant is to file and serve by 5.00 pm on Friday, 19 October, 2012 an amended statement of defence and counterclaim which is to include the further particulars provided to date and further particulars of the alleged oral term referred to in [9] of her statement of defence.

[14] Each party seeks costs against the other. The plaintiffs were entitled to bring their application and have succeeded on it. The defendant provided some of the required particulars after the plaintiffs filed their application. The plaintiffs have

achieved further success today. Costs should follow the event. The plaintiffs are

_{entitled to 2B costs on the application.}

M A Gilbert