Steel v Spence Consultants Limited [2016] NZHC 2724 (14 November 2016)

Last Updated: 9 December 2016

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000672 [2016] NZHC 2724

BETWEEN	EMMA JOY STEEL AND SARAH NANCY OTT (AS TRUSTEES OF THE NINFIELD TRUST) Plaintiffs
AND	SPENCE CONSULTANTS LIMITED First Defendant GARY BRENT SPENCE Second Defendant

Hearing:	14 November 2016
Appearances:	G A Cooper and S Cowan for Plaintiffs H C Matthews and K Graham for Defendants
Ruling:	14 November 2016

_{ORAL RULING (2) OF GENDALL J}

STEEL v SPENCE CONSULTANTS LIMITED [2016] NZHC 2724 [14 November 2016]

[1] Admissibility issues have been raised at this point of the trial with respect to the evidence of Emma Joy Steel who is the first witness before the Court. It is

11:15 a.m. on Monday 14 November, the first day of this trial, and Ms Steel is in the witness box about to give evidence.

[2] Mr Matthews, counsel for the defendants, has raised issues concerning evidence contained in the two briefs of evidence which Ms Steel has served on the defendants, and which are now before the Court.

[3] With regard to Ms Steel’s first brief of evidence, an issue has been raised first with respect to paragraph 10. This concerns the weather-tightness report on the property in question which Ms Steel indicates she faxed to her solicitor at the time, Mr Michael Sweeney. Mr Matthews raises objection with a sentence in her evidence where she says:

Mr Sweeney also advised me that he was satisfied that the report covered weather-tightness issues.

[4] Mr Matthews’ objection to this statement is advanced on the basis that it is inadmissible hearsay, as Mr Sweeney is not to be called as a witness in this trial. I agree. Although in saying that, it may well be a reasonable inference in all the circumstances, given the outcome of events which have occurred in this case, that Ms Steel in her evidence may well deal with this issue in providing her oral evidence as to the efforts she made to establish what she might do in this case, and the basis of legal advice she chose to seek. Notwithstanding this, the last sentence of para [10] of her initial brief is inadmissible and is to be deleted.

[5] The next question relates to para [24] of Ms Steel’s initial brief. Here, she said in her evidence:

Mary Turnbull [who I presume to be a real estate agent] said to me that the house could be sold for around $400,000 with its weather-tightness issues.

[6] Again, Mr Matthews objects to this evidence on the basis that it is inadmissible hearsay, given that Mary Turnbull is not to provide evidence in this case. Again I agree, but also again I make the comment that Ms Steel, who is now in the witness box, in my view is able to provide evidence as to the efforts she made in

this matter to endeavour to establish how she could confront the problem with which she was faced with this property and the advice she sought. Notwithstanding this, technically para [24] of this first brief is inadmissible hearsay. It is to be deleted.

[7] Next, Ms Steel provided a supplementary brief of evidence I understand dated 8 November 2016. On this, first, Mr Matthews objected to certain sentences included in para [6] of this brief which read as follows:

I called several contractors after I had received the Hampton Jones report to ascertain whether they could assist me with the repairs to the house. One such contractor was Build Tech. The contractors I called were not prepared to assist me with the repairs to the property unless the repair entailed a full replacement of the cladding. I understand that the contractors were not prepared to assist with the repairs because a patchwork repair of the property does not deal with the unknown water damage and as such the contractors are unable to provide a guarantee for the work.

[8] On this aspect, as I understand it, Mr Matthews objects to the reference to the contractor Build Tech which is providing no one to give evidence in this case on its behalf. Further, as I understand it, Mr Matthews raises concerns that Ms Steel here may be endeavouring to put a degree of expert evidence before this Court, when she is not qualified as an expert to do so.

[9] On these aspects I disagree with the stance taken by Mr Matthews however. As I see the position, Ms Steel in her evidence is again simply outlining the steps she took in an endeavour to solve the problem she was facing with the property. It is proper, as I see it, for her to indicate that the contractors who she did call were not prepared to assist her with the repairs, and the basis upon which she understood this to be the case. Although the sentence beginning “I understand that the contractors were not prepared to assist... because...” does provide a degree of opinion, again I am happy for it to be admitted as evidence in this trial given, of course, the fact that it is simply an understanding Ms Steel has reached and she is not an expert in this matter.

[10] Next and finally, Mr Matthews objected to certain statements made by Ms

Steel at para [7] of this supplementary brief. At para [7] in part Ms Steel stated:

I approached two real estate agents to provide me with appraisals. One such agent was Julie Ashmore Smith. Julie suggested we set a reserve of

$220,000. Bayleys’ real estate estimated the house may sell for $390,000.

The house was sold to a purchaser for $400,000 with no estate agent’s

commission payable.

[11] Again Mr Matthews objected to aspects of this evidence on the basis that, given that neither Ms Ashmore Smith nor any Bayleys’ real agent are to provide evidence in this matter, comments attributable to them are simply hearsay and are inadmissible.

[12] Again I am mindful in this case that Ms Steel is about to provide her evidence in this matter. It is my view that it cannot be objectionable for Ms Steel to provide evidence of what she thought was a realistic price estimate for her house which she was selling, and the broad basis on which she reached this view. Whilst technically there can be no question that it is inadmissible hearsay for Ms Steel to endeavour to give evidence regarding statements made by others (who are not providing evidence in this case), in my view the broad thrust of her evidence outlined in para [7] in this brief is acceptable and does not unfairly infringe this rule. Accordingly I rule that these statements in para [7] of this brief of evidence are admissible and are to remain.

[13] That is my decision on the admissibility questions.

...................................................

Gendall J

Solicitors:

Cavell Leitch, Christchurch

White Fox & Jones, Christchurch