Ahipara Developments Ltd v Hape HC Auckland CIV-2011-404-1269

[2011] NZHC 1707

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-1269

BETWEEN  AHIPARA DEVELOPMENTS LTD Plaintiff

ANDSHONTAYNE EDWARD HAPE AND LIANA ETTA HAPE

Defendants

Hearing:         28 November 2011

Counsel:         G J Kohler for Plaintiff

No appearance by or on behalf of Defendants

Judgment:      29 November 2011

JUDGMENT OF BREWER J

This judgment was delivered by me on 29 November 2011 at 2:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS

Heugh M Kelly (Wellsford) for Plaintiff

COUNSEL GJ Kohler

AHIPARA DEVELOPMENTS LTD V HAPE HC AK CIV-2011-404-1269 29 November 2011

Introduction

[1]     The plaintiff seeks orders that the defendants specifically perform two agreements for sale and purchase of real estate.

[2]      No steps have been taken by the defendants and so the matter came before me on a formal proof basis.

The plaintiff ’s evidence

[3]      Service of the proceeding has been effected on the defendants.

[4]      Evidence on behalf of the plaintiff was given by Mr O’Rourke.  Mr O’Rourke has been employed by the plaintiff in a senior role from early 2004 to the present date.  He has personal knowledge of the factual matters.

[5]      Mr O’Rourke’s evidence establishes that on 9 January 2007 the defendants as purchasers entered into agreements for sale and purchase of two sections in a subdivision known as the Sandhills Road subdivision.   The agreements related to lots 8 and 9 of the subdivision.  The purchase price for lot 8 was $158,000 and the purchase price for lot 9 was $160,000.

[6]      Each agreement contained identical conditions.  On the evidence before me, and in particular the inferences which can be drawn from the documents in exhibit 1, I am satisfied that the conditions were either fulfilled or waived.

[7]      The agreements became unconditional, the deposits were paid, notice of settlement  was  duly  given  and  the  defendants  failed  or  refused  to  complete settlement.

[8]      The exhibited correspondence does not show any reason advanced by or on behalf of the defendants for them not completing their obligations under the agreements.  Mr O’Rourke has said that as far as he is aware no actual reason has

been given by the defendants.  There is an available inference that the market prices of the sections have fallen.

Decision

[9]     The defendants are liable at law to perform their obligations under the agreements, and in particular to complete payment in terms of the agreements.

[10]     I am satisfied that specific performance is a better remedy in this case than judgment on liability with a direction for a damages hearing.

[11]     The defendants contracted to buy the sections.   They have taken no steps despite knowing that  the primary remedy being sought  is  specific performance. There is, for example,  no reason  for me to suppose that the defendants cannot comply with an order for specific performance because of lack of financial means.

[12]     Accordingly, I order:

(a)      That the defendants specifically perform the agreement for sale and purchase dated 9 January 2007 in respect of lot 8, Sandhills Road, Ahipara; and

(b)That the defendants specifically perform the agreement for sale and purchase dated 9 January 2007 in respect of lot 9, Sandhills Road, Ahipara; and

(c)      That the defendants pay the plaintiff its costs in this proceeding to be calculated on a 2B basis.

[13]     Leave  is  reserved  to  the  plaintiff  to  apply  for  further  or  varied  orders (including orders for damages) as might prove necessary to give proper effect to the orders made hereunder or to otherwise recognise the finding of liability on the part

of the defendants.

Brewer J