Best of Luck Limited v Diamond Bay Investments Ltd HC Auckland CIV 2007-404-2043

[2007] NZHC 2106

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2007-404-2043

BETWEEN  BEST OF LUCK LIMITED Plaintiff

AND  DIAMOND BAY INVESTMENTS LTD First Defendant

AND  DOUGLAS JOHN COWARD Second Defendant

Hearing:         31 July, 1, 2, 3, 7, 8, 10 and 14 August 2007

Counsel:        R B Hucker and R K Mason for Plaintiff

M Fisher and J D Ryan for Defendants

Judgment:      12 September 2007

JUDGMENT OF HEATH J

Solicitors:

Hucker & Associates, Auckland Claymore Law, Auckland Counsel:

M Fisher, Auckland

BEST OF LUCK LIMITED V DIAMOND BAY INVESTMENTS LTD AND ANOR HC AK CIV 2007-404-

2043 12 September 2007

[1]      Best of Luck Ltd (BLL) seeks specific performance of an agreement for sale and purchase of a property and business (the agreement) dated 2 February 2007, as varied on 21 February 2007.  By that agreement BLL agreed to buy a tourist lodge business and the land at Te Puru on which it is situated from Diamond Bay Investments Ltd  (Diamond).    Te  Puru  is  on  the  west  coast  of the  Coromandel Peninsula.  If BLL’s application for specific performance were dismissed, Diamond seeks an order removing the caveat lodged against the subject property.  BLL makes other claims, based on alleged misrepresentations.

[2]      This proceeding was heard over eight sitting days in August 2007.   At the conclusion of the hearing, I was told that a decision was required urgently, on the specific performance claim, as Diamond had contracted to sell the property in issue to a third party for settlement on 14 September 2007.

[3]      BLL’s  application  for  an  order  for  specific  performance  is  dismissed. Diamond’s counterclaim for an order removing a caveat lodged against the subject land is granted.  My judgment remains reserved on all other claims for relief made by both plaintiff and defendants.

[4]      Reasons for my decision to dismiss the specific performance claim and to order removal of the caveat will be given in the same judgment in which I determine the balance of the claims.  For the benefit of counsel and the parties, that judgment is unlikely to be delivered before mid to late November 2007.

[5]      The formal orders of the Court are:

a)       The plaintiff’s application for an order for specific performance is dismissed.

b)       The plaintiff’s caveat (no. 7260524.1) registered against the subject property (comprised and described in Certificate of Title SA44B/185, South Auckland Land Registry) shall be removed.

c)       Leave to apply is reserved if any issue were to arise about the form of order required by the District  Land Registrar to  give effect  to the removal of the caveat.

[6]      I am sitting in Rotorua this week and a telephone conference can be arranged if necessary.  Should a conference be necessary, I will require memoranda indicating the nature of any further directions sought.

P R Heath J

Delivered at 2.00pm on 12 September 2007