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IN THE COURT OF APPEAL OF NEW ZEALAND
CA31/07
[2008] NZCA 82BETWEENPREMIUM REAL ESTATE LTD
Appellant
ANDMARK MONCRIEFF STEVENS, DEBORAH RUTH STEVENS AND MELVA BEATRICE WALKER (AS TRUSTEES)
Respondents
Hearing:25 September 2007
Court:O'Regan, Arnold and Wilson JJ
Counsel:M A Gilbert and P J Napier for Appellant
W Akel and N M Alley for Respondents
Judgment:11 April 2008 at 11.30 am
JUDGMENT OF THE COURT
A The appeal against liability is dismissed.
BThe appeal against the quantification of damages is allowed and the cross-appeal is dismissed.
CThe judgment of the High Court as to damages is set aside. We award the respondents (jointly) damages in the amount of $225,000, plus interest at 7 per cent from the date of settlement of the Stevens/Mahoenui sale.
DThe respondents (jointly) must pay the appellant costs of $3,000 in this Court, together with usual disbursements. We certify for two counsel.
REASONS OF THE COURT
(Given by Arnold J)
Table of Contents
Para No.
Introduction [1]
Factual background [8]
Discussion [22]
Fair Trading Act – misleading and deceptive conduct [23]
Breach of fiduciary duty [57]
Damages [82]
Decision [101]Introduction
[1] Mr and Mrs Stevens owned a valuable residential property in Auckland (through a family trust of which they and the remaining respondent were trustees). They sold the property to Mahoenui Valley Trust (Mahoenui) for $2.575m in April 2004.
[2] Before the transaction had settled, Mahoenui took steps to resell the property, advertising it with a price guide between $3.8m and $4.8m. In November 2004 Mahoenui sold the property for $3.555m, having undertaken some superficial improvement (such as repainting) in the meantime.
[3] The appellant, Premium Real Estate Limited (Premium), acted for the Stevens on the sale. Premium also acted for Mahoenui on the resale, although another agency also became involved. In particular, one of Premium’s agents, Ms Riley, brought the offer from Mahoenui to the Stevens, and discussed it with them. Soon after the offer was accepted, she was appointed by Mahoenui to act on the resale. Ms Riley had acted for Mahoenui’s principal, Mr Larsen, previously and knew that he was a property speculator who attempted to buy desirable properties at an undervalue and on-sell them soon after at a higher price. In addition, both of Ms Riley’s daughters had a professional association with Mr Larsen.
[4] The Stevens were most upset when they learnt what had happened. They issued proceedings against Premium seeking the return of the real estate commission on the sale ($67,050) and damages ($995,000, being the difference between the sale price ($2.575m) and a contemporaneous valuation of the property ($3.57m)). They alleged breaches of the Fair Trading Act 1986 (FTA), negligence, breach of contract and breach of fiduciary duty.
[5] They succeeded before Courtney J on one aspect of their FTA claim and on their breach of fiduciary duty claim: (2006) 11 TCLR 854. The Judge found that the value of the property as at April 2004 was…
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- Case
- [2008] NZCA 82
- Decision Date
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Background
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