Paget v Station Properties Limited - [2011] NZCA 570

IN THE COURT OF APPEAL OF NEW ZEALAND

CA36/2010
[2011] NZCA 570

BETWEEN SHANE ARTHUR PAGET
Appellant

AND STATION PROPERTIES LIMITED
Respondent

Hearing: 15 August 2011

Court: Arnold, Winkelmann and Andrews JJ

Counsel: P J Shamy for Appellant
J S Cooper for Respondent

Judgment: 11 November 2011 at 10.30 am

JUDGMENT OF THE COURT

AThe applications for leave to amend the grounds of appeal and to file further evidence are granted.
BThe appeal is allowed. The order for summary judgment in favour of the respondent is quashed and the matter is remitted to the High Court for trial.
CThe appellant must pay the respondent costs for a standard appeal on a band A basis plus usual disbursements.

REASONS OF THE COURT
(Given by Arnold J)

Introduction

The appellant, Mr Paget, appeals against a decision of Associate Judge Sargisson granting the respondent, Station Properties Ltd (Station), summary judgment and ordering him to specifically perform an agreement for sale and purchase of an apartment.[1] Mr Paget also applies for leave to amend his grounds of appeal and to adduce further evidence. Station opposes these applications.

Background to respondent’s application for summary judgment

[1] Station Properties Ltd (in rec) v Paget HC Auckland CIV-2009-404-664, 22 December 2009.

Station is a property development company. It went into receivership in April 2009. Mr Paget is a real estate agent and was the sole director of a company known as Shaq Holdings Ltd (Shaq), which went into liquidation in May 2010.
On 19 September 2006 Station and Mr Paget entered into an agreement for the sale and purchase of an apartment in a development that Station was undertaking in Queenstown. When the development was completed, Station called on Mr Paget to settle but he failed to do so. In February 2009, Station issued proceedings against him seeking specific performance of the agreement and applied for summary judgment. Station’s application was supported by an affidavit from a director, Mr Robert McEwan, who controlled Station at the relevant time.
Mr Paget opposed Station’s application, arguing that summary judgment should not be granted as he had a potential defence to the claim. He said that the agreement was essentially an underwrite agreement to enable Station to obtain finance for the development. Accordingly, Mr Paget argued, the agreement was subject to an implied term that Station would use its best endeavours to find another purchaser before calling on him to settle.
Associate Judge Sargisson rejected Mr Paget’s contention. She found that there was no room to imply such a term into the agreement and ordered specific performance. Mr Paget filed an appeal against that decision, on the basis that the Associate Judge had erred in ruling out the possibility of a defence based on the implied term.

Developments since summary judgment granted

Mr Paget now says that after the appeal was filed, he was assisting Shaq’s liquidator, Mr Brady, with information about the liquidation. While searching through Shaq’s files looking for some documentation in relation to a car lease, he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NZCA 570
Decision Date: 11 November 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Paget v Station Properties Limited was heard on appeal by Arnold, Winkelmann, and Andrews JJ. The appellant, Shane Arthur Paget, contested a decision made by Associate Judge Sargisson, who granted summary judgment in favour of the respondent, Station Properties Limited. Station Properties Limited is a property development company that entered into an agreement for the sale and purchase of an apartment with Mr Paget on 19 September 2006. Mr Paget failed to settle the agreement when the development was completed, leading Station Properties Limited to seek specific performance of the agreement and apply for summary judgment.

The central legal issues in this case involved whether the Court should grant Mr Paget leave to amend his grounds of appeal and admit further evidence. The Court also needed to determine whether the Associate Judge had erred in ruling out the possibility of a defence based on an implied term in the agreement. Furthermore, the Court had to decide whether the evidence presented by Mr Paget was fresh, credible, and cogent.

In granting the appellant's applications for leave to amend his grounds of appeal and to file further evidence, the Court found that there were exceptional circumstances justifying the admission of the new evidence. The Court considered that if Mr Paget's allegations were true, Station Properties Limited would not have met its disclosure obligations and would have obtained summary judgment on a wrong basis as a consequence of that failure. The Court decided to allow the appeal, quash the order for summary judgment in favour of the respondent, and remit the matter to the High Court for trial. The appellant, Mr Paget, must pay the respondent, Station Properties Limited, costs for a standard appeal on a band A basis plus usual disbursements.

Orders