Vikram Kumar v Station Properties Ltd - [2015] NZSC 33

IN THE SUPREME COURTOF NEW ZEALAND

SC 39/2013
[2015] NZSC 33

BETWEEN

VIKRAM KUMAR AND NIRUPAMA KUMAR
First Appellants

ROBERT JAMES SELWYN
Second Appellant

MICHAEL DONALDSON and PATRICIA BRONWYN DONALDSON
Third Appellants

AND

STATION PROPERTIES LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION)
Respondent

Hearing of recall application:	8 December 2014
Court:	Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ
Counsel:	R M Kelly for Appellants D J Goddard QC and M J Tingey for Respondent
Judgment:	1 April 2015

JUDGMENT OF THE COURT

A The application for recall is dismissed.
BCosts of $10,000 plus usual disbursements are awarded to the appellants.
CThe judgment of this Court of 15 October 2014 (Kumar v Station Properties [2014] NZSC 146) is reissued with the corrections and additions noted in the Appendix to this judgment.

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REASONS

Elias CJ, McGrath, Glazebrook and Arnold JJ	[1]
William Young J	[78]
Appendix	[87]

ELIAS CJ, MCGRATH, GLAZEBROOK AND ARNOLD JJ

(Given by Glazebrook J)

Table of Contents

Para No
Introduction	[1]
Background	[5]
The High Court judgment	[14]
Station’s arguments in the Court of Appeal	[20]
Court of Appeal judgment	[24]
The application for leave	[29]
Submissions on appeal before this Court	[33]
The purchasers’ submissions	[33]
Station’s written submissions	[36]
Station’s outline of oral submissions	[38]
Station’s oral submissions	[40]
This Court’s judgment	[49]
The recall application	[60]
Should the judgment be recalled?	[61]
Comments on substantive points made	[71]
Result and costs	[75]

Introduction

On 15 October 2014, this Court allowed the appellants’ (referred to in this judgment as the purchasers) appeal against a decision of the Court of Appeal.[1] The appeal concerned whether the purchasers were entitled to cancel agreements with Station Properties Ltd (in liquidation and in receivership) for the sale and purchase of apartments in a Queenstown development. The High Court had held that they were so entitled.[2] That finding had been overturned by the Court of Appeal.[3] This Court’s judgment restored the orders of the High Court.[4]
[1]Kumar v Station Properties Ltd (in liq and in rec) [2014] NZSC 146, (2014) 15 NZCPR 548 [Station Properties (SC)]. William Young J dissented. Unless otherwise stated, the paragraph references are to the re-issued version of the judgment.
[2]Station Properties Ltd (in rec) v Kumar [2012] NZHC 1527 (Toogood J) [Station Properties (HC)].
[3]Station Properties Ltd (in rec and liq) v Kumar [2013] NZCA 70, (2013) 14 NZCPR 32 (O’Regan P, Randerson and Asher JJ) [Station Properties (CA)].
[4]Station Properties (SC), above n 1.
On 17 October 2014, Station applied for recall of this Court’s judgment. It said that the Court had acted on a mistaken assumption in its judgment as to an alleged concession made by Station in the Court of Appeal that there was an obligation on Station to arrange a management agreement for all the apartments in the complex. The purchasers opposed the application for recall.
We are satisfied that Station did not make such a concession.[5] The…

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.

Continue reading Vikram Kumar v Station Properties Ltd

Details

AGLC: Vikram Kumar v Station Properties Ltd [2015] NZSC 33
Case: [2015] NZSC 33
Decision Date: 1 April 2015

CaseChat Overview and Summary

In the matter of Vikram Kumar v Station Properties Ltd, the appeal concerns the interpretation and enforcement of contractual obligations stemming from a property sale, including the provision of a management agreement. The case was heard in the Supreme Court of Victoria, Court of Appeal. The primary legal issues revolved around whether the respondent, Station Properties Ltd, had an obligation or merely an option to provide a management agreement as part of the sale, and if the appellant, Vikram Kumar, had properly raised this issue during the appeal process. Additionally, the court examined whether Station had complied with procedural requirements by notifying the court of its intention to rely on certain grounds for support that were not previously considered by the lower court.

The court determined that the respondent had not complied with rule 20A of the Supreme Court Rules 2004, which mandates that a party intending to rely on different grounds for support must explicitly notify the court of this intention in their written submissions. Despite the broad nature of the leave question, the court held that natural justice and the necessity for clarity in the scope of the appeal required adherence to this procedural rule. The court noted that while the respondent’s leave submissions focused on other issues, the appellants had made it clear that they were challenging the findings related to the side agreements, including the management agreement. However, Station did not signal its intention to argue that it only had an option to provide the management agreement, thereby failing to comply with the procedural requirement. The court further clarified that the procedural rule is particularly important when the leave question is broad, to ensure both parties have a fair opportunity to address all relevant points.

In light of these findings, the court rejected the respondent's argument and did not recall the judgment to address the substantive arguments regarding the management agreement. Consequently, the appeal was dismissed on the basis of procedural non-compliance. The final orders of the court upheld the original decision of the lower court, denying the respondent's appeal and enforcing the original judgment against Station Properties Ltd.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

We do not, however, consider that we should recall the judgment to deal with the substantive arguments that Station now wishes to make. The Court of Appeal did not make any definitive finding on whether there was an obligation or an option to provide a management agreement.[69] Therefore, if Station wished to argue that it only had an option to provide a management agreement, then it needed to signal this in its written submissions. This is required by r 20A of the Supreme Court Rules 2004 which provides:[70] 20ANotice in respondent's submission that judgment will be supported on other groundsIf a respondent does not wish the judgment appealed from to be varied but intends to support it on another ground (being a ground that the court appealed from did not decide or decided erroneously), the respondent must give notice of that intention in the respondent’s written submissions.[69]See above at [25]–[26].[70](Emphasis added). As we have noted, the purchasers’ submissions on the application for leave to appeal concentrated on the lack of a proper certificate of completion.[71] It was clear, however, from the purchasers’ submissions on the substantive appeal that they were challenging the findings of the Court of Appeal, not just in relation to the certificate of practical completion but also in relation to the failure to perform the side agreements, including the provision of a concluded management agreement. This was of course within the scope of the leave granted (and Mr Goddard does not contend otherwise). [71]See above at [30]. We accept that, because of the focus of the purchasers’ leave submissions, it was not necessary for the management agreement argument to be signalled in Station’s leave submissions (although it may have at least been mentioned out of an abundance of caution). However, it was clear from the purchasers’ submissions on the substantive appeal that the purchasers were alleging a breach of the side agreements (including the management agreement) and asserting that these terms were essential. Station argues that r 20A did not apply because of the breadth of the leave question. We do not accept that submission. Natural justice requires that appellants have notice of and therefore a fair opportunity to address all points the respondent wishes to make.[72] The Court too must know what it is being asked to adjudicate on. This is important both for the oral hearing and for preparation of the judgment. The need to comply with r 20A is arguably even greater when the leave question is couched in general terms so the ambit and limits of the arguments that will be made in relation to that general question are known in advance of the hearing. [72]Station also contends that the purchasers recognised that this issue remained live on the appeal to this Court. In support of this contention, Station quotes one sentence from the purchasers’ written submissions and one sentence from the purchasers’ counsel, Ms Kelly, at the oral hearing. This conclusion cannot be inferred from the sentences relied on and, in any event, Station did not raise the issue as required by r 20A of the Supreme Court Rules.

Ratio Decidendi

Legal Principle Established

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