Cassiny Ltd v Hounslow Holdings Ltd - [2021] NZHC 2528

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001789

[2021] NZHC 2528

UNDER Property Law Act 2007

IN THE MATTER OF

an agreement for sale and purchase of real estate

BETWEEN

CASSINY LIMITED

Plaintiff

AND

HOUNSLOW HOLDINGS LIMITED

Defendant

Hearing: 24 September 2021

Appearances:

C Elliott QC, K J Sheehan and J P Palairet for Plaintiff K Davenport QC and A M Cameron for Defendant

Judgment:

24 September 2021

ORAL JUDGMENT OF WOOLFORD J

Solicitors:Kate Sheehan Lawyers (K Sheehan), Auckland, for Plaintiff Sellars & Co (B Wyber), Auckland, for Defendant

Counsel: Clive Elliott QC, Auckland, for Plaintiff
K G Davenport QC, Auckland, for Defendant

CASSINY LTD v HOUNSLOW HOLDINGS LTD [2021] NZHC 2528 [24 September 2021]

[1] On 3 December 2020, the plaintiff, Cassiny Limited, entered into an agreement to purchase bare land at 47 Urumaraki Avenue, Helensville, from the defendant, Hounslow Holdings Limited. The plaintiff intends to subdivide the land into about 28 or 30 lots and onsell them. Settlement date was six months from the date the agreement became unconditional.

[2] The agreement became unconditional on 25 February 2021. Settlement was therefore due on 25 August 2021. The purchase has not settled. The defendant issued a settlement notice on 3 September 2021, requiring settlement on or before 21 September 2021.

[3] On 20 September 2021, the plaintiff filed proceedings against the defendant claiming the settlement notice was invalid and there was an implied term in the agreement that it was conditional on resource consent from Auckland Council. In an urgent interlocutory application for interim orders, the plaintiff seeks an order suspending the settlement notice and deferring the settlement date until further order of the Court or agreement between the parties.

[4] On 21 September 2021 at 9 am I heard from the parties by way of telephone conference. On that date, counsel for the defendant gave an undertaking suspending the settlement notice on an interim basis until the matter could be heard and determined by the Court. I heard from the parties at a substantive hearing by way of VMR at 10.30 am today, Friday, 24 September 2021.

Test for interim orders

[5] The test for interim orders is well-established. First, a plaintiff must establish that there is a serious question to be tried. Secondly, the balance of convenience must be considered and, finally, an assessment of the overall justice is required as a check.

[6] As to a serious question to be tried, it is sometimes framed as the claim not being frivolous or vexatious. That however is not sufficient of itself. The plaintiff must adduce sufficiently precise factual evidence to satisfy the Court that there is a real prospect of succeeding in the claim at trial. The Court should carefully consider

the merits of the plaintiff’s claim in fact and in law. If on the evidence adduced the law gives the plaintiff no remedy, then the plaintiff cannot claim interim relief.

[7] The question of balance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 2528
Decision Date: 24 September 2021

CaseChat Overview and Summary

Cassiny Limited brought an action against Hounslow Holdings Limited seeking to suspend the settlement of an agreement for sale and purchase of land at Helensville and to defer settlement until further order of the Court or agreement between the parties. The plaintiff contends the settlement notice issued by the defendant was invalid and that there was an implied term in the agreement that settlement was conditional on resource consent from Auckland Council. The defendant contends the settlement notice is valid and enforceable and that the plaintiff’s claims are without merit. The court was required to decide whether there was a serious question to be tried, the balance of convenience, and overall justice. The court found that there was no serious question to be tried as the plaintiff had ample time to make an application for resource consent and put finance in place for settlement. The balance of convenience did not favour the plaintiff, and overall justice did not support the making of the orders sought. The application for interim orders was dismissed, and the defendant was entitled to costs on a 2B basis. The court found that the plaintiff had failed to establish that there was a serious question to be tried or that the balance of convenience favoured the making of the orders sought. The court found that the plaintiff had ample time to make an application for resource consent and put finance in place for settlement and that the defendant had no knowledge that finance would only be available if the plaintiff had obtained resource consent for the subdivision. The court found that the defendant would suffer damage if any injunction was later found to be without merit and that it was unclear what losses would be suffered by the purchasers of any of the subdivided lots. The court found that overall justice did not support the making of the orders sought. The application for interim orders was dismissed, and the defendant was entitled to costs on a 2B basis.

Orders