Published 8 April 2009
The Supreme Court has rejected an application by Premium Real Estate Ltd to have a question relating to the market value of a property referred back to the Court of Appeal – the last chance to overturn a decision on a sale dispute dating back to 2004.
In March, the Supreme Court ruled in favour of the sellers of a North Shore house and against Premium, on the basis of a preferred valuation although there was minimal market interest in the property, and because of a failure to tell the vendors the purchaser was a speculator.
The Supreme Court ruling reinstated the decision of Auckland High Court judge Patricia Courtney as to the valuation & margin used for assessing damages.
In a new judgment issued on 3 April, the Supreme Court said Premium hadn’t pursued the particular valuation issue at previous hearings, even though courts had raised the opportunity for it to do so.
The Supreme Court said the market value wasn’t a matter Premium sought to raise in connection with its opposition to the appellants’ leave application: “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.
“Very significantly, notwithstanding that one of the approved grounds on which the Stevens (the sellers of the house) 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 & solicitors by the solicitors for the
“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.
“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 paragraph 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.”
Attribution: Judgments, story written by Bob Dey for the Bob Dey Property Report.