M H NATHAN AND ORS V G S SMITH AND ORS HC AK CIV 2007-404-000253

M H NATHAN AND ORS V G S SMITH AND ORS HC AK CIV 2007-404-000253

Leave to appeal was declined because the issues were largely factual or the application of settled law, concurrent findings by two judges reduced the need for further appeal, the matter lacked sufficient public importance given statutory change in 2008, and granting leave would not finally determine litigation because tort causes remained; accordingly the interests of justice did not require a second appeal.

Citation
openlaw-77e2f2d4_9352_4122_9d7a_a2a43a3ba4d7.pdf
Parties
First Plaintiffs: Miles Hunter Nathan; James Denis Tait; Michael Gerard Curtis; Second Plaintiffs: Miles Hunter Nathan; Mary Nathan; First Defendants: Geoffrey Stephen Smith; Carolyn Smith; Second Defendant: Scott Bernard Macbeth; Third Defendant: Sumich Architects Limited; Fourth Defendant: Matthew Robert Chaplain; Fifth Defendant: Ronald William Robinson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 February 2010
Procedural Posture
Civil Leave to Appeal Application to Court of Appeal / Application for Leave to Appeal From High Court Review of Associate Judge Decision (refused)
Outcome
Application for leave to appeal to the Court of Appeal declined.
Legal Topics
Notice of Assignment, Equitable Assignment, Limitation Period, Leave to Appeal, Summary Judgment, Assignment of Contractual Rights
Property Law Contract Tort Equity Civil Procedure Notice of Assignment Equitable Assignment Limitation Period +3 more

Case Brief

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Parties

Miles Hunter Nathan; James Denis Tait; Michael Gerard Curtis

First Plaintiffs

Miles Hunter Nathan; Mary Nathan

Second Plaintiffs

Geoffrey Stephen Smith; Carolyn Smith

First Defendants

Scott Bernard Macbeth

Second Defendant

Sumich Architects Limited

Third Defendant

Matthew Robert Chaplain

Fourth Defendant

Ronald William Robinson

Fifth Defendant

Procedural Posture

Civil Leave to Appeal Application to Court of Appeal / Application for Leave to Appeal From High Court Review of Associate Judge Decision (refused)

Legal Issues

  1. 1 What is required for a valid notice of assignment?
  2. 2 Did the memorandum of transfer and notice of change of ownership constitute a valid notice of assignment?
  3. 3 If no valid notice prior to expiry of limitation period, did assignees stop time under the Limitation Act 1950?

Ratio Decidendi

Leave to appeal was declined because the issues were largely factual or the application of settled law, concurrent findings by two judges reduced the need for further appeal, the matter lacked sufficient public importance given statutory change in 2008, and granting leave would not finally determine litigation because tort causes remained; accordingly the interests of justice did not require a second appeal.

Court Disposition

Application for leave to appeal to the Court of Appeal declined.

Orders

  • Leave to appeal refused.
  • Costs awarded to Mr and Mrs Nathan on a 2B basis; no allowance for second counsel.