BOTANY LAND DEVELOPMENT LTD and ANOR v PALLISTER and ORS [2016] NZHC 1371

BOTANY LAND DEVELOPMENT LTD and ANOR v PALLISTER and ORS [2016] NZHC 1371

The Court refused to exclude the trustees' expert evidence in bulk, ruling most challenged expert material admissible and leaving weight to the trial judge, but excluded paragraphs 67–73 of Mr Nolan's first brief as inadmissible legal submission on a READT decision; the trustees' application for an undertaking as to damages in support of the Council's caveat was refused for lack of a proper jurisdictional and discretionary basis given the prior caveat proceedings, settlement and appropriate alternative remedy by pleading a cross-claim (with leave).

Citation
[2016] NZHC 1371
Parties
First Plaintiff: Botany Land Development Limited; Second Plaintiff: 184 Maraetai Road Limited; First Defendant (trustees): Margaret Ellen Pallister; Wendy Jane Pallister; Julian Mary Menzies; Second Defendant: Auckland Council; First Third Party: Paul Kenneth Foster (Fleming Foster Palmer); Second Third Party: Bayleys Real Estate Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 June 2016
Procedural Posture
Civil Property and Equitable Dispute (sale and Purchase; Priority of Interests; Specific Performance) / Interlocutory Applications Determined Ahead of Four Week Trial Listed to Commence 3 October 2016
Outcome
Botany's admissibility application dismissed; Bayleys' admissibility application granted in part (paragraphs 67–73 of Mr Nolan's first brief excluded); trustees' application for an undertaking as to damages in support of the caveat dismissed.
Legal Topics
Specific Performance, Caveat, Priority of Interests, Undertaking as to Damages, Admissibility of Expert Evidence, Right of First Refusal, Sale and Purchase Agreement, Mistake, Damages in Lieu
Property Equity Civil Procedure Evidence Conveyancing Contract Specific Performance Caveat +7 more

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Parties

Botany Land Development Limited

First Plaintiff

184 Maraetai Road Limited

Second Plaintiff

Margaret Ellen Pallister; Wendy Jane Pallister; Julian Mary Menzies

First Defendant (trustees)

Auckland Council

Second Defendant

Paul Kenneth Foster (Fleming Foster Palmer)

First Third Party

Bayleys Real Estate Limited

Second Third Party

Procedural Posture

Civil Property and Equitable Dispute (sale and Purchase; Priority of Interests; Specific Performance) / Interlocutory Applications Determined Ahead of Four Week Trial Listed to Commence 3 October 2016

Legal Issues

  1. 1 Validity of cancellation of the Botany sale agreement
  2. 2 Which agreement (Botany or Council) has priority
  3. 3 Whether specific performance should be granted or denied

Ratio Decidendi

The Court refused to exclude the trustees' expert evidence in bulk, ruling most challenged expert material admissible and leaving weight to the trial judge, but excluded paragraphs 67–73 of Mr Nolan's first brief as inadmissible legal submission on a READT decision; the trustees' application for an undertaking as to damages in support of the Council's caveat was refused for lack of a proper jurisdictional and discretionary basis given the prior caveat proceedings, settlement and appropriate alternative remedy by pleading a cross-claim (with leave).

Court Disposition

Botany's admissibility application dismissed; Bayleys' admissibility application granted in part (paragraphs 67–73 of Mr Nolan's first brief excluded); trustees' application for an undertaking as to damages in support of the caveat dismissed.

Orders

  • Paragraphs 67 to 73 of Mr Nolan's first brief of evidence ruled inadmissible at trial
  • All other admissibility challenges to trustees' expert evidence dismissed