IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CIV-2019-485-273
[2020] NZHC 2508	

BETWEEN	CATHERINE MARGARET FOGARTY
Plaintiff	
AND	JAMES ANTHONY FOGARTY
First Defendant

TERENCE RAYMOND HAWKINS
Second Defendant

WESTPAC NEW ZEALAND LIMITED
Third Defendant	

Hearing:	3 September 2020	
Appearances:	R J Bayer and R M Stoop for Plaintiff D J Moore for First Defendant	
Judgment:	27 November 2020	

JUDGMENT OF CLARK J

Overview

[1]	Mr and Mrs Fogarty entered into a deed of family arrangement with their son James Fogarty, the first defendant.1 Under the deed James was to buy his parents’ home. While title would vest in James his parents were to have a life interest. Title was eventually transferred but James has still not paid the purchase price. Mrs Fogarty sues for breach of contract.

1	In this judgment I refer to the first defendant as “James” rather than “Mr Fogarty” to avoid confusion with James’ father. I mean no disrespect to James in using his first name.

FOGARTY v FOGARTY [2020] NZHC 2508 [27 November 2020]

[2]	By the time of the hearing and in light of their ongoing settlement discussions the plaintiff no longer pursued her claims against the first and second defendants.

[3]	The hearing proceeded by way of formal proof. In the remainder of this judgment I explain why I did not grant James leave to file a statement of defence. I then explain why I have decided to order that title revert to Mrs Fogarty by way of relief for James’ breach of contract.

Factual background

[4]	Until Mr Fogarty died in July 2019 the couple lived together in the home he built in 1969 at Hillside Drive, Upper Hutt (the property).

[5]	In 2004 James agreed with his parents to purchase the property for $200,000. The parents agreed to sell the house to James at that price so he could enter the property market. The agreement was formalised in a deed of family arrangement signed and witnessed on 18 July 2004.

[6]	The key terms of the deed were that:

(a)	A life interest in the property was to be reserved to Mr and Mrs Fogarty to allow them to continue to live there for the rest of their lives.

(b)	The certificate of title would continue to be in the parents’ name until full payment was received.

(c)	The payment of $200,000 for the property was to be made up of:

(i)	$10,000 to be paid into the parents’ account;

(ii)	a $5,000 fixed deposit to be transferred into the parents’ name;

(iii)	$10,000 was to be deducted from James’ inheritance; and

(iv)	The balance of $175,000 to be paid in instalments as convenient.

(d)	Until the property was transferred to him, James would continue to pay the rates and half of the power and telephone accounts for the property while he was residing in a unit on the property. The parents would be responsible for maintenance of the property including insurance and mortgage repayments (if any).

[7]	James started paying the rates from 2012. An agreement for sale and purchase was entered into on 14 September 2012 under which a settlement date of 28 September 2012 was fixed.

[8]	The agreement for sale and purchase recorded that the parents had received
$25,000 leaving a balance of $175,000 to be paid at a later date.

[9]	Nothing further was heard from James until August 2013 when he visited his parents with the second defendant, a solicitor, and asked his parents to sign documents. One of the documents was an authority for an electronic transaction. The other was an acknowledgment, signed by both parents, that the $175,000 balance had been paid. Mrs Fogarty’s uncontested affidavit evidence is that James assured his parents that night that he would pay the amount he owed and on that basis they agreed to sign the documents. At that time they trusted James. They did not want to stand in the way of what he had organised with the second defendant. Mrs Fogarty deposed to there being “quite a lot of pressure on us to get things signed and sorted while [the second defendant] was at our house”.

[10]	Despite James’ assurances the payment of $175,000 was never made. They became aware in 2016 that title had in fact been transferred on 20 September 2013. Because James had paid  the  rates since 2012, nothing had changed for  Mr  and  Mrs Fogarty when title was transferred and so there was nothing to alert them to the fact of the transfer.

[11]	Mrs Fogarty describes James’ behaviour towards his parents changing midway through 2016. For the purpose of this judgment I need only to record that in July 2017 Judge O’Dwyer found it necessary to make a final protection order in favour of Mr and Mrs Fogarty in relation to their son. Judge O’Dwyer also made an occupation order entitling Mr and Mrs Fogarty to occupy the property at Hillside Drive.

The matter is listed for formal proof

[12]	The proceedings were filed on 15 May 2019. Pursuant to an order for substituted service dated 9 July 2019, James was served by Facebook post and by advertising.

[13]	Mr More, who appeared for James at the hearing on 3 September 2020 for the purpose of arguing an application to file a statement of defence, acknowledged the proceedings were brought to James’ attention in November 2019.

[14]	No steps were taken by James until 29 June 2020 when he emailed counsel for Mrs Fogarty following which, on 1 July 2020, counsel emailed a copy of the proceedings to James’ nominated email address.

[15]	At a case management conference on 27 July 2020 Associate Judge Johnston ordered that unless James filed and served a statement of defence within 10 working days, the matter was to be set down for a formal proof hearing as soon as possible.2

[16]	On 10 August 2020, through counsel, James requested a further 10 working days within which to file a statement of defence.

[17]	On 12 August 2020 the Associate Judge directed the matter be set down for a formal proof hearing. If between 12 August and the hearing, James took steps to enter an appearance, then whether or not he should be given leave to do so was to be addressed at the hearing.

2	Fogarty v Fogarty HC Wellington CIV-2019-485-273, 27 July 2020.

[18]	Indeed, at 4.45 pm on the day before the hearing, James filed an interlocutory application for leave to file a statement of defence. I turn now to that application.

Application to file a statement of defence

[19]	Rule 15.9(3) of the High Court Rules 2016 provides:

Formal proof for other claims

…

(3)     After a proceeding is listed for a formal proof hearing, no statement   of defence may be filed without the leave of a Judge granted on the ground that there will or may be a miscarriage of justice if judgment by default is entered, and on such terms as to time or otherwise as the Judge thinks just.

…

[20]	In considering whether or not there may be a miscarriage of justice if leave is not granted authorities have applied the factors that assist the Court when considering, under r 15.10, whether to set aside a default judgment on the basis there has been a miscarriage of justice. Russell v Cox is regarded as the leading case on applications to set aside judgments by default.3

[21]	The Court will consider whether:4

(a)	the defendant has a substantial ground of defence;

(b)	the delay is reasonably explained; and

(c)	the plaintiff will suffer irreparable injury if the judgment is set aside.

[22]	In Ooi v Ting, Faire J said of Russell v Cox:5

[16]  The Court of Appeal emphasised that whilst the three factors have   long been considered the factors of dominant importance in a consideration of this matter, they are not elevated to conditions which must be a necessary prerequisite to the exercise of the discretion.

3	Russell v Cox [1983] NZLR 654 (CA).
4	At 659, citing Paterson v Wellington Free Kindergarten Association Inc [1966] NZLR 975 at 983.
5	Ooi v Ting [2016] NZHC 952.

Substantial ground of defence?

[23]	For the following three principal reasons I do not consider James has a substantial defence.

[24]	First, while the exact amount that James has paid under the deed of family arrangement is disputed, James does not dispute that the full purchase price has never been paid. Although Mrs Fogarty pleads, and her evidence is that, the amount owing under the deed was always $175,000, James has maintained over the years that “around $140,000” was owing to his parents. For example, a letter from the second defendant on 15 February 2017 to a solicitor acting for Mr and Mrs Fogarty stated that James wished to pay monies outstanding to his parents which he had indicated was around “$140,000”.

[25]	The essential point, however, is that the exact amount owing is irrelevant for the purpose of considering whether or not James breached the contract. What is plain, and undisputed, is that the property was transferred to James notwithstanding that he had not paid the full purchase price.

[26]	Secondly, James’ contention that his parents agreed he was not required to pay the purchase price before the property was transferred not only lacks an evidential basis but is contradicted by other evidence. On 27 August 2013 James and the second defendant visited Mr and Mrs Fogarty at their home and requested that they sign further documents. One of the documents was an unadorned three lines stating that Mr and Mrs Fogarty acknowledged payment of the balance of the purchase monies (namely $175,000) had been paid. At the time the document was signed, James had not actually paid his parents. Mrs Fogarty’s evidence is that she remembers James assuring his parents that night that he would pay the remainder of the money and on that basis they agreed to sign the documents they were given. They trusted James at the time and did not want to stand in the way of arrangements James had entered into with the second defendant. Although he does not say so explicitly in his statement of defence the second defendant seems to have understood that James had indeed paid the balance of the purchase price to Mr and Mrs Fogarty when they signed the acknowledgment because the second defendant pleads “that he did not learn until

about October 2016 that James had not paid the balance of the purchase price to the plaintiffs”.

[27]	The deed of family arrangement clearly states that certificate of title will continue to be in the parents’ name until full payment has been made. Not only is there no evidence supporting James’ contention of a variation to the deed by virtue of his parents refusing his offer to pay the outstanding purchase price, but the documentary evidence strongly suggests otherwise. In any event, variations to contracts must be in writing. Section 24 of the Property Law Act 2007 requires a contract for the disposition of interests in land to be in writing. Where the original contract is required to be in writing, an oral variation will be unenforceable if it is not in writing.6

[28]	My third reason for concluding that James does not have a substantial defence is because his failure to pay the full purchase price due under the contract amounted to breach of an essential term of the contract. His failure gave rise to a right to cancel the contract which right, the plaintiff exercised. On 7 November 2018 the parents’ lawyers wrote to  James  demanding  that  he  deposit  the  following  amounts  by  14 November 2018:

(a)	the $175,000 owing under the deed of family arrangement;

(b)	$40,000 to cover repairs to the windows, cladding and roofing; and

(c)	$35,944.60 being interest on the unpaid purchase price.

[29]	James was advised that failure to pay the amount demanded by the stated date and time would result in termination of the contract on the basis of his material breach.7 Even if there was no effective cancellation of the contract James’ repudiation of the contract by failing to perform his obligations entitled the parents to cancel.

6	Jeremy Finn, Stephen Todd and Matthew Barber Law of Contract in New Zealand (6th ed, LexisNexis, Wellington, 2018) at [19.2.1].
7	See from [46] below for discussion of the requirement to notify intent to cancel.

Reasonable explanation for delay?

[30]	Mr More explained in a memorandum filed on 22 July 2020 that James had filed an application for legal aid and that Mr More was prepared to accept instructions to act if legal aid were granted. Mr More further explained that he understood a case management conference was to be convened on 27 July at 10 am. He asked to be joined to that conference and requested time to file a statement of defence if legal aid was granted.

[31]	Unfortunately, the telephone conference on 27 July 2020 was at 9 am not    10 am and Mr More was therefore not joined to the telephone call. However, the Associate Judge recorded in his Minute  of  27 July  2020  his  understanding  that Mr More had been approached by James and was prepared to accept instructions from and represent him. The Associate Judge ordered a statement of defence to be filed and served within 10 working days. The Associate Judge directed that a copy of his Minute be forwarded to Mr More and also that the plaintiff’s solicitors email a copy to James’ email address.

[32]	James was first served in November 2019. Mr More has explained his position and the limited instructions he received from James, but James has offered no explanation at all — much less any reasonable explanation — for the delay between the time when he was served in November 2019 and his approach to counsel in    July 2020.

[33]	I note finally that even as at 1 September 2020 when the interlocutory application was filed, James had not received a full grant of legal aid. The plaintiff says an inference can be drawn that James has not satisfied the agency he has sufficient prospects of success.

Irreparable prejudice to the plaintiff?

[34]	Counsel described the settlement discussions between the plaintiff and second and third defendants as having been “fruitful”.

[35]	On 28 August 2020 a joint memorandum was filed by counsel for the plaintiff and second and third defendants. Those parties are confident the issues between them are capable of resolution without further intervention from the Court. Specifically, the second and third defendants do not oppose the plaintiff obtaining judgment by formal proof. The property is subject to a mortgage to the third defendant which does not oppose the transfer of the property to the plaintiff. The second and third defendants were excused from appearing at the formal proof hearing.

[36]	I mention that detail because the only issues for determination are those between the plaintiff and James. Not until the day before this hearing did James choose to engage in any meaningful way. Even if there had been a reasonable explanation for the delay, and assuming the defence was tenable, there would be further delay if James were to now engage even in closely timetabled interlocutory steps. I am mindful of the undoubted stress which these proceedings are causing to the plaintiff. As Judge O’Dwyer observed in her judgment in July 2017 the sad events that led to the application before her have distressed the applicants.

[37]	In September 2011 Mrs Fogarty suffered meningitis as a consequence of which she has had fingers and toes amputated and suffered significant nerve damage. As a result she has  been  (and remains) in  a  wheelchair.  While in  hospital for  some  six months she suffered damage to her trachea and vocal cords which means she has difficulty speaking. Mr Fogarty passed away in July 2019. The parents were driven to seek orders from the Family  Court  in  2017  and  the  judgment  records  that  Mrs Fogarty gave evidence “with great dignity and clarity”.8 While she became tearful when describing that she was scared, and it was plain to the Judge that she was vulnerable, the Judge also described her as a “very clear–thinking person”. Although James filed an affidavit in that proceeding denying the allegations against him he did not appear. He gave evidence about the deed of family arrangement and the Judge said it was clear from his affidavit he had not paid the balance of the purchase price despite the fact title had been transferred to him. For reasons that I do not need to detail the Judge found James’ evidence “inherently implausible”.9

8	Fogarty v Fogarty [2017] NZFC 5601 [Family Court judgment] at [16].
9	At [24].

[38]	Three years on, Mrs Fogarty continues to be engaged in what is undoubtedly distressing litigation in relation to her son. Mrs Fogarty does not have to “prove” there would be irreparable damage. If she was vulnerable in 2017 when she had her husband to support her, she is likely to be even more vulnerable now. Fortunately, Mrs Fogarty has the company of her 19 year-old granddaughter who lives with her and one of her daughters is her caregiver. Mrs Fogarty describes the last few years as being “hugely stressful”; she and her husband felt unsafe in their own home because of James’ actions. The house has been modified for her needs and she describes it as having “happy memories” for her. Without owning it, however, if Mrs Fogarty needs to move into a care facility she would not have the money to be able to do so.

[39]	James’ failure to register Mrs Fogarty’s life interest, in breach of the deed of family arrangement, has not enhanced Mrs Fogarty’s peace of mind. For this reason Judge O’Dwyer was satisfied Mr and Mrs Fogarty were entitled to and needed an occupation order. Her Honour considered that when these present property proceedings were resolved the occupation order would no longer be necessary and could be discharged.

[40]	There needs to be an end to this stressful uncertainty for Mrs Fogarty. As I say, she does not have to prove irreparable damage. It can safely be assumed that the situation hardly enhances Mrs Fogarty’s already compromised health and wellbeing. She is 69 years old and finds herself in an intolerable situation which, if not concluded, is likely to be detrimental to her mental and emotional, if not physical, wellbeing. These effects are not compensable by costs.

[41]	In all the circumstances I decline leave to file a statement of defence.

Was there a valid cancellation?

[42]	The question is whether Mrs Fogarty validly cancelled the contract.

[43]	The breach is proved. James acknowledges he has not paid the purchase price. Nor is it disputed that a life interest in the property has not been reserved to the plaintiff.

[44]	Under s 37 of the Contract and Commercial Law Act 2017 (the CCLA) a party to a contract may cancel it if a term is breached by another party to the contract. The right to cancel may be exercised only if:10

(a)	the parties have expressly or impliedly agreed that the performance of the term is essential to the cancelling party; or

(b)	the effect of the breach will be to substantially reduce the benefit of the contract or increase the burden of the contract to the cancelling party or will make the benefit or burden “substantially different” from that contracted for.

[45]	The plaintiff submits, and I accept, that the payment of the purchase price was an implied essential term.

[46]	I also accept that cancellation was validly effected. Section 41 provides that cancellation does not take effect until notice of cancellation is given to the other party. Notice may be given by words or by conduct showing an intention to cancel, or both.11 It is not necessary to use any particular form of words, so long as the intention to cancel is made known.12 In this case Mrs Fogarty made her intention to cancel known to James by correspondence via her solicitors.  By letter dated 7 November 2018  Mrs Fogarty’s solicitors informed James of her intention to cancel the contract if payment of the outstanding purchase price (among other claimed sums) was not paid by 14 November 2018. That letter was sent to his known address at Oxford Street, Dunedin.   Further   correspondence   extending   the   deadline   for   repayment   to 8 December at 4 pm, was sent on 30 November 2018 although to a different address.

[47]	In my view it can be inferred that James knew of the letters and their content. In her affidavit Mrs Fogarty explains that in August 2018 the letters were sent to James at the two Dunedin addresses and left there by a process server. There is also evidence that he had received, and responded to, communications from Mrs Fogarty’s solicitors sent to the Oxford Street address a few weeks prior in August and September 2018.

10	Contract and Commercial Law Act 2017, s 37(2).
11	Section 41(2).
12	Section 41(2).

[48]	As well, I note that James’ application for fee waiver filed on 1 September 2020 with his interlocutory application for leave to file a statement of defence13 has the same Oxford Street address.

[49]	Even if James was unaware of the 7 and 30 November letters, I am satisfied the right to cancel was validly exercised. Under s 41 of the CCLA cancellation may also take effect if it is not reasonably practicable for the cancelling party to communicate with the other party14 and the cancelling party shows an intention to cancel “by some clear means that is reasonable in the circumstances”. Mrs Fogarty made her intention to cancel known in August 2018 via correspondence sent to the Oxford Street address by Mrs Fogarty’s solicitor who informed James that Mr and Mrs Fogarty no longer wished to sell him the property and requested the transfer back of the Hillside property. James responded via email. Given the difficult history between James and his parents, I accept that direct communication was not reasonably practicable.

[50]	In summary I find there was a valid and effective cancellation of the contract.

Relief

[51]	The effect of cancellation does not mean, however, that title automatically reverts to Mrs Fogarty. Section 42(1)(b) provides that when a contract is cancelled:

… to the extent that the contract has been performed at the time of the cancellation, no party is, by reason only of the cancellation, divested of any property transferred or money paid under the contract.

[52]	The Court has broad powers under the CCLA to give relief following cancellation. Section 43 empowers the Court, if it is “just and practicable to do so” to make an order vesting “the whole or any party of any relevant property in a party”.15 The matters for which the Court must have regard when considering whether to make a s 43 order are set out in s 45:

13	See [18] above.
14	Section 41(1)(b).
15	Section 43(3)(c).

(a)	the terms of the contract;

(b)	the extent to which any party to the contract was or would have been able to perform it in whole or in part;

(c)	any expenditure incurred by a party in, or for the purpose of, performing the contract;

(d)	the value, in the court’s opinion, of any work or services performed by a party in, or for the purpose of, performing the contract;

(e)	any benefit or advantage obtained by a party because of anything done by another party in, or for the purpose of, performing the contract; and

(f)	any other matters that the court thinks proper.

[53]	Furthermore a party is not prevented by their cancellation of the contract from recovering damages16 although the value of any relief granted under s 43 must be taken into account in assessing damages.

Appropriate to award relief?

[54]	I consider the following factors weigh in favour of ordering that title to the property vests in Mrs Fogarty:

(a)	Mrs Fogarty has remained in possession of the home throughout. She obtained an occupation order and the house itself has been modified to accommodate her needs.

(b)	Transfer of title is appropriate in view of the parties’ contractual agreements. It was always the intent of the parties that the parents would remain in possession of the property and retain a life interest. Clause 5 of the contract provided that title was to stay with or revert to

16	Section 49.

Mrs Fogarty if James did not fulfil any of his obligations under the contract.

(c)	I accept Ms Stoop’s submission that James is unlikely to perform the contract in whole or even in part. The remainder of the purchase price has remained outstanding for over ten years and has not been repaid despite his parents’ entreaties and repeated requests from their solicitors. Financially, James does not appear to be in a position to pay the balance or interest as he is in default on the mortgage payments and has applied for legal aid for these proceedings.

[55]	Weighing against transfer is that James has incurred some expenditure in partial performance of the contract.17 He paid $25,000 towards the purchase price:
$10,000 from his inheritance and $15,000 by direct transfer. It appears James paid the rates from 2012 for a period of time. Mrs Fogarty has therefore obtained a benefit of
$25,000, the payment of some of her rates and has remained in occupation of the home. But I do not consider those factors make the transfer of title unjust or inequitable. James has also obtained considerable benefit for very little consideration. He obtained a loan of some $200,000 secured against the property.

[56]	Ms Stoop submitted that the $25,000 sum is effectively a deposit on the property and not recoverable by James. The submission is made in reliance on cl 2(a) of the Deed of Family Arrangement which describes the $25,000 as a deposit and    cl 10.5 of the sale and purchase agreement which provides that the vendor is entitled to retain the deposit if the purchaser does not comply with the terms of the settlement notice (although no settlement notice was served in this case).

[57]	Deposits can be analysed as a form of security for performance.18 The general rule is that where parties describe a sum as a “deposit” they can be taken to have intended that if the purchaser defaults the sum will be liable to forfeiture or recovery

17	Section 45(c).
18	See discussion in Finn, Todd and Barber, above n 6, at 735 and fn 263.

by the vendor.19 The ability to forfeit or recover (whatever the case may be) is implied by use of the word deposit.20 Viewed in this light it seems to me neither inequitable nor unjust for James to forfeit the deposit to Mrs Fogarty. And in any event, any question of recovery of the deposit is to be raised in debt recovery proceedings, rather than analysed in the context of contractual remedies.21

[58]	For the foregoing reasons I consider it is just and practicable to make an order vesting the property in Mrs Fogarty.

Damages for emotional distress?

[59]	Mrs Fogarty seeks general damages for distress and suffering arising out of the breach and surrounding actions.

[60]	Section 49 permits a party to claim damages even if that party has cancelled the contract. Reflecting the principle that a plaintiff cannot recover more than once for the same loss, any relief granted under s 43 is to be taken into account in the damages award.22

[61]	The question of recovery of damages for emotional distress is not as straightforward as submitted by Mrs Fogarty.23 Generally New Zealand courts have been reluctant to award damages for emotional distress for a purely commercial contract24 but there can be difficulty in drawing a line between contracts that are “purely commercial” and those that are not. For example, damages were not available in the consumer context for the faulty construction of a luxury yacht for a wealthy

19 Garratt v Ikeda [2002] 1 NZLR 577 at [40]–[41]; see also Francis Dawson and David McLauchlan “Recovery of deposits by defaulting purchasers under the Contractual Remedies Act 1979” [1981] NZLJ 486 at 489.
20	Garrat v Ikeda, above n 19, at [41].
21	Pendergrast v Chapman [1988] 2 NZLR 177 (CA) at 191; followed in Bussell v Morton Read Farming Corp Ltd (1990) 1 NZ ConvC 190,338.
22	See for example Herbison v Papakura Video Ltd (No 2) [1987] 2 NZLR 720.
23 See for example David McLauchlan “Mental distress damages for breach  of  commercial  contracts” (1997) 3 NZBILQ 130; and Leigh Miller Damages for emotional distress [2008] NZLJ 78.
24	Bloxham v Robinson [1996] 2 NZLR 664 (CA); and Crump v Wala [1994] 2 NZLR 331.

American couple,25 but were available for the failed sale of an inherited property by “totally inexperienced” defendants to the plaintiff property developer.26

[62]	In the United Kingdom there appears to be little discussion of the “purely commercial” distinction. Instead, successive courts have held that damages for emotional distress are not available for distress caused by the mere fact a contract has been broken but they are available for distress or emotional anguish caused by physical consequences of the breach,27 or loss of entertainment and enjoyment.28

[63]	Returning to the facts of this case, I do not consider the contract was purely commercial. The sale of property was by parents to their son. The parents’ purpose was to assist their son to enter the property market. As reflected in cl 1(b) of the contract, it was always the intention that the parents would reside in the home during their lifetime. In my view damages for emotional distress are available in this context as a matter of principle.

[64]	But I have other concerns with the assessment of the loss. There is no question Mrs Fogarty has suffered real distress arising from her son’s breach. The difficulty is that the breach of contract has not been the only contributor to Mrs Fogarty’s distress. There have been the disputes with the second defendant, her son’s fraud in transferring title without his parents’ knowledge and the draining circumstances leading to the protection order. The distress was no doubt exacerbated by Mrs Fogarty’s physical condition for which I have considerable sympathy but the circumstances do raise a question as to the remoteness of loss.

[65]	Generally, an aggrieved party is only entitled to recover losses that are a reasonably foreseeable or a probable consequence of the breach of contract.29 It is unclear whether a strict remoteness assessment is relevant to the assessment of

25	Piers v Imation Holdings Ltd HC Auckland CIV-2005-404-503, 5 December 2006.
26	Tapp v Blackmore HC Auckland CP37/02, 14 February 2003.
27	Watts v Morrow [1991] 4 All ER 937 (CA).
28	Jarvis v Swans Tours Ltd [1973] 1 All ER 71 (HL); and Farley v Skinner [2002] 2 AC 732 at 732 (HL).
29	Hadley v Baxendale (1854) 9 Exch 341 at 354; and Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 KB 528 (HL).

damages for emotional distress30 but without the benefit of full argument I do not think it is appropriate to attempt to resolve the point. I do consider it is appropriate to award damages but reduced to recognise Mrs Fogarty’s emotional distress is not caused solely by James’ failure to pay the purchase price. I am also conscious of the fact that damages for breach of contract are compensatory, not punitive.31

[66]	Ms Stoop does not suggest a figure but I consider an award of $8,000 is reasonable and not inconsistent with the awards in two previous cases which I have considered.32

Disposition

[67]	I make the following orders:

(a)	Title to the property at 59 Hillside Drive, Upper Hutt (identifier WN7A/1018, having the legal description Lot 12 Deposited Plan 29880) vests in Catherine Margaret Fogarty.

(b)	The first defendant, James Anthony Fogarty, is to pay to Mrs Fogarty damages in the sum of $8,000.

(c)	As the successful party Mrs Fogarty is entitled to costs although I note she is in receipt of legal aid.

Karen Clark J

Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for Plaintiff Octagon Chambers Ltd, Dunedin for First Respondent

30	See discussion in Finn, Todd and Barber, above n 6, from 859; and Attorney General v Gilbert
[2002] NZLR 342 (CA).
31	Addis v Gramophone Co Ltd [1909] AC 488 (HL)
32	Mouat v Clark Boyce [1992] 2 NZLR 559 (CA) and Tapp v Blackmore, above n 26.