Mark Moncrieff Stevens v Premium Real Estate Ltd Recall Application

IN THE SUPREME COURT OF NEW ZEALAND
SC 23/2008
[2009] NZSC 31

BETWEENMARK MONCRIEFF STEVENS AND OTHERS

Appellants

ANDPREMIUM REAL ESTATE LTD

Respondent

Court:Elias CJ, Blanchard, Tipping, McGrath and Gault JJ
Counsel:W Akel and N M Alley for Appellants

P J Napier for Respondent

Judgment:3 April 2009

JUDGMENT OF THE COURT (RECALL APPLICATION)

THE APPLICATION FOR RECALL IS DISMISSED WITH COSTS OF $2,500 TO THE APPELLANTS.
REASONS
[1]       The respondent seeks recall of this Court’s judgment of 6 March 2009.[1] It wishes to have a question relating to the market value of the property referred back to the Court of Appeal. This was not however a matter which the respondent sought to raise in connection with its opposition to the appellants’ leave application in this Court. No notice of intention to support the judgment of the Court of Appeal on this ground was given by the respondent nor did it seek to challenge the market value figure adopted by the Court of Appeal in its own application for leave.
[1] [2009] NZSC 15.
[2]       Very significantly, notwithstanding that one of the approved grounds on which the Stevens were granted leave was “whether the Court of Appeal adopted the correct approach to the assessment of damages and correctly fixed the quantum of damages”, the respondent did not seek to have the valuers’ evidence included in the Case on Appeal despite having the omission of that material from the draft Case expressly drawn to the attention of its counsel and solicitors by the solicitors for the Stevens.
[3]       Furthermore, at the hearing, when it was pointed out from the Bench that this Court was at a disadvantage concerning the assessment of market value because the valuation reports were not before it, no attempt was made, even at that late hour, to have the Court receive them.
[4]       The respondent chose not to have this Court examine the basis on which the trial Judge made her assessment of market value, except on the limited argument which is mentioned in para [87] of the reasons and without reference to valuation reports. Having proceeded in that way, the respondent must now accept the finality of the judgment of this Court. No proper basis for the recall of the judgment has been made out. It is not in the interests of justice that having with apparent deliberation omitted to provide sufficient support for its argument on valuation, the respondent should be given an opportunity of remedying that omission in the manner which it now proposes. The judgment of this Court must stand.
Solicitors:
Simpson Grierson, Auckland for Appellants
Keegan Alexander, Auckland for Respondent

CaseChat Overview and Summary

The Supreme Court of New Zealand heard a recall application in the case of Mark Moncrieff Stevens and others versus Premium Real Estate Ltd. The recall was sought by the respondent, Premium Real Estate Ltd, aiming to have a question about the market value of the property re-examined by the Court. The initial case involved a dispute over damages resulting from alleged breaches of fiduciary duty and negligence by the respondent. The Court of Appeal had determined the market value of the property and awarded damages accordingly. Premium Real Estate Ltd now sought to challenge this valuation.

The legal issues before the Supreme Court centred on whether the recall application should be granted and if the Court of Appeal’s valuation should be revisited. Notably, the respondent had not raised the issue of market value in their opposition to the appellants' leave application, nor had they provided any notice of their intention to support the judgment of the Court of Appeal on this ground. Additionally, the respondent had failed to include the valuers’ evidence in the case despite being alerted to this omission. The Supreme Court considered whether these omissions provided a proper basis for recalling the judgment and re-examining the valuation.

The Supreme Court dismissed the recall application, holding that no proper basis for recall had been established. The Court noted that the respondent had deliberately omitted to provide sufficient support for its argument on valuation. Having not challenged the market value at the appropriate stage, the respondent could not now seek to remedy this omission. The Supreme Court concluded that it was not in the interests of justice to allow the respondent to revisit the valuation at this stage. Consequently, the judgment of the Court of Appeal stood.

The final orders of the Supreme Court were that the recall application was dismissed, with costs of $2,500 to be paid by the appellants.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established