Wiltshire Developments Limited v Blake [2013] NZHC 951 (2 May 2013)

Last Updated: 26 July 2013

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2012-409-863 [2013] NZHC 951

BETWEEN WILTSHIRE DEVELOPMENTS LIMITED

First Plaintiff

AND FOWLER DEVELOPMENTS LIMITED Second Plaintiff

AND ETHEL CYNTHIA BLAKE First Defendant

AND WENDY ANN BURGESS AND WILLIAM LESLIE BROWN Second Defendants

AND MINA ANNETTA BURGESS Third Defendant

AND ELSIE CHURCHILL, BARRY SPENCER CHURCHILL AND WILLIAM LESLIE BROWN

Fourth Defendants

AND MURRAY DOUGLAS FORSYTH AND EILEEN MARGARET FORSYTH

Fifth Defendants

AND RONA JANET HENDERSON Sixth Defendant

AND JOYCE O'BRIEN Seventh Defendant

Hearing: 2 May 2013

Counsel: J E Bayley for Plaintiffs

D M Lester for Defendants

_{Judgment: 2 May 2013}

WILTSHIRE DEVELOPMENTS LIMITED V BLAKE, BURGESS, BROWN AND ORS HC CHCH CIV 2012-

409-863 [2 May 2013]

JUDGMENT OF PANCKHURST J (ON RECALL APPLICATION)

Introduction

[1] Following delivery of the substantive decision on 15 April 2013, Wiltshire sought both recall and correction of the judgment. The defendants also sought a recall in relation to one aspect, the costs award.

Recall

[2] In the substantive decision I made declarations modifying aspects of the machinery provisions of the buyback option available to Wiltshire. However, Mr Bayley considered that I had overlooked an aspect of his argument, namely that:

Notice cannot be delivered within 90 days of death to executors or administrators if they have not been appointed within that timeframe.

Hence, counsel sought a recall for a declaratory order to be made concerning how the option was to be exercised where executors or administrators were not appointed within the 90 day timeframe. A proposed form of modification was advanced and in the alternative a suggestion that a direction be made to the parties to confer in an endeavour to their reaching agreement upon a modification.

[3] I am not persuaded that a recall in relation to this aspect is appropriate. There was no oversight. I was aware of the problem that confronted Wiltshire, namely that the exercise of the option may be frustrated through delay in the appointment of executors or administrators. However, I was not persuaded that intervention to remove this difficulty was appropriate, as the proposed modification would alter the substance of the bargain, not just provide machinery to secure its performance. This conclusion was recorded at [39] of the judgment. Accordingly, the point raised was not overlooked and there is no basis for me to initiate a recall.

Two corrections

[4] Mr Bayley also sought two further changes which I regard as corrections in terms of r 11.10 of the High Court Rules.

[5] The first concerns the option pertaining to a unit occupied by the third defendant, Mina Annetta Burgess. The drafting of this option was amended to accommodate the circumstance that the unit is owned by a family trust, the trustees of which being the grantors of the option. Clause 3 required changes to reflect this situation. In error I ordered a modification to clause 3(A)(b) to refer to ‘the estate of Mina Annetta Burgess’ (in lieu of ‘the trustees for the estate of the grantor’), when this change was not required.

[6] The third sentence in [41] of the judgment is corrected to read:

The trustees are the grantors, but to make the option workable clause 3(A) should refer to the death of Mina Annetta Burgess and clause 3A(b) to personal delivery of the notice and cheque to the grantor.

As originally drafted the clause also authorised delivery to the trustees for the estate of the grantor, but this was inapposite where the grantor is the trustee of a family trust.

[7] Secondly, in error the intitulment to the judgment referred to six defendants when in reality there was a seventh defendant, Joyce O’Brien, as described in the intitulment to this recall decision. This omission, also not opposed by Mr Lester, is accordingly rectified.

The costs award

[8] At [43] of the substantive judgment I awarded costs to Wiltshire on a 2(B) basis for a half day hearing. Mr Lester sought the recall of this order because submissions were not made concerning costs at the hearing. He further submitted that because Wiltshire failed in relation to the dominant modification it sought to the option, neither party enjoyed substantial success at the summary judgment stage.

[9] I disagree. Viewed in the round I remain of the view that Wiltshire

‘successfully resisted the defendants’ application (for summary judgment) and also succeeded in large measure with reference to its application for summary judgment’. Accordingly, I decline to recall.

A further direction

[10] At least one cause of action, the defendants claim that the options represent an unlawful restraint upon alienation, remains alive since it was not susceptible of resolution in a summary judgment context.

[11] Accordingly, the proceeding is listed for a telephone conference before Associate Judge Matthews on 3 July 2013 at 2.00 pm to enable case management directions to be made. If, however, this remaining claim is not to be pursued a memorandum to that effect may be filed in advance of the conference.

Solicitors:

J E Bayley: [e-mail]

D M Lester: [e-mail]