Cole v Maikuku
[2024] NZHC 3512
•25 November 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2024-419-000088
[2024] NZHC 3512
BETWEEN GRAEME JOHN COLE and ROSANNA MARIA COLE
Plaintiffs
AND
PATRICK MAIKUKU
Defendant
Hearing: 13 November 2024 Appearances:
M J Meier for Plaintiffs
No appearance for Defendant
Judgment:
25 November 2024
JUDGMENT OF WHATA J
This judgment was delivered by me on 25 November 2024
pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors:
Victoria Whitfield Barrister, Cambridge Copy to:
P Maikuku
COLE v MAIKUKU [2024] NZHC 3512 [25 November 2024]
[1] This is an application for orders to achieve specific performance of a sale and purchase of a property at Te Anga Road, Waitomo.
Background
[2] The background was helpfully summarised by Mr Meier, counsel for the plaintiffs. I adopt it.
[3] Under a written contract dated 1 November 2023, the plaintiffs, Graeme Cole and Rosanna Cole (the Coles) agreed to purchase and the defendant, Patrick Maikuku, to sell the Waitomo property for $265,000. The Coles paid a deposit of $26,500 on 6 November 2023.
[4] On 10 November 2023, Mr Maikuku’s solicitor provided a settlement statement confirming the amount required to settle the purchase was $238,844.60 (Settlement Sum). On 13 November 2023, the Coles transferred $240,394.60 to their solicitor’s trust account to pay the Settlement Sum, conveyancing fees and expenses. The Settlement Sum is still held in the solicitor’s trust account.
[5] The settlement was agreed by email on 15 and 20 November 2023. Mr Maikuku has failed or refused to settle the sale of the property on the settlement date after receiving the settlement notice.
[6] As a consequence of this, the Coles applied and obtained orders for specific performance. On 1 July 2024, Associate Judge Sussock made the following orders:1
(a)an order for specific performance directing Mr Maikuku to perform and settle the written agreement for sale and purchase dated 1 November 2023 within 15 working days of the date of the judgment; and
(b)for Mr Maikuku to pay the Coles’ costs of this proceeding, including the application for summary judgment on a 2B basis, in the amount of
1 Cole v Maikuku [2024] NZHC 1743.
$10,755.00 and costs plus disbursements of $1,967.00 for a total of
$12,722.00.
[7] The sealed order was served on Mr Maikuku on 8 July 2024. The period specified in the judgment for specific performance has expired and Mr Maikuku has failed or refused to perform the sale and purchase agreement. The settlement sum is still in the Coles’ solicitor’s trust account and the Coles are ready, willing and able to settle.
[8] This application was served on Mr Maikuku on 4 November 2024. The time for filing a notice of opposition expired on 19 November 2024. The significance of this is addressed below.
Assessment
[9] Mr Maikuku has taken no steps to defend the Coles’ claim. A significant period has elapsed since the due date for settlement and since Mr Maikuku was served with the previous orders for specific performance. Save in relation to the claim to interest, the Coles’ contractual entitlements are clear. It is time to bring this transaction to a conclusion.
[10]To achieve this, the Coles seek the following orders for:
(a)a vesting order that the property be transferred to the Coles;
(b)vacant possession;
(c)deductions from the Settlement Sum;
(d)interest at a rate of 14 per cent from the settlement date until they receive vacant possession;
(e)compliance with warranties (per cl 7 of the contract) relating to rates arrears, water rates and other charges, and an order allowing deductions for breach of these warranties from the settlement sum.
[11] As I indicated to Mr Meier, I am content to make the orders sought except for an adjustment to the rate of interest payable. In my view, the interest claimed could arguably amount to an unenforceable penalty, and I have concerns at the time it has taken to action the present step. I am, however, content to proceed on the basis that interest at the contractual rate was properly payable to the date of service of the first order for specific performance, there being no undue delay in taking that step. But for the balance, I consider ordinary interest payable is the proper measure, with the following outcome:
(a)Interest is to be paid at a rate of 14 per cent (per cl 3.13 of the contract) from the settlement date until the date of service of the first order for specific performance on 8 July 2024.
(b)Interest is to be paid as fixed by the Interest on Money Claims Act 2016 until vacant possession.
[12] Mr Meier has since the hearing filed a set of orders for my final approval, including as to interest payable. I am happy with those orders which are:
After reading the statement of claim dated 16 April 2024, sealed order dated 3 July 2024, interlocutory application dated 15 October 2024, the undertaking of Kathryn Joy Walker, the affidavits of Stephen Anthony West dated 10 September 2024, Stephen Anthony West dated 8 November 2024 and Rosanna Maria Cole dated 12 September 2024 filed herein and after hearing counsel on behalf of plaintiffs, this Court orders:
1.The property at 3184 Te Anga Road, Waitomo as described in certificate of title SA26D/754, with legal description SECT 22 BLK X KAWHIA SOUTH SD, SECT 23 BLK X KAWHIA SOUTH SD is vested in Graeme John Cole and Rosanna Maria Cole. The Registrar-General of Land is ordered to transfer the registered estate and interest in the property to Graeme John Cole and Rosanna Maria Cole.
2.The defendant to give the plaintiffs vacant possession of the above property within 20 working days of this order.
3.The defendant to pay the plaintiffs interest due to late settlement and delay:
a.at a rate of 14 per cent per annum daily calculated from 15 November 2023 until the order for specific performance on 1 July 2024 on $265,000.00 in the amount of $23,276.44;
b.from 2 July 2024 to 20 November 2024 as calculated by the Civil Debt Interest Calculator which is established and maintained by the Ministry of Justice on a Ministry internet site in accordance with s 13 of the Interest on Money Claims Act 2016 on $265,000.00 in the amount of $9,989.40;
c.from 21 November 2024 until receipt by the plaintiffs of both title and vacant possession of the property as calculated by the Civil Debt Interest Calculator established by the Interest on Money Claims Act 2016 on $265,000.00.
4.Costs and disbursements on a 2B basis in the amount of $4,560.16 ($3,585.00 for costs and $975.16 for disbursements) in favour of the plaintiffs for the interlocutory application dated 15 October 2024.
5.The costs award of $12,722.00 in the judgment of 1 July 2024 and the costs award above in the amount of $4,560.16 to be deducted from the settlement sum to be paid by the plaintiffs.
6.The defendant to comply with the vendor warranties in the agreement for sale and purchase between the parties up to and including the date that the plaintiffs receive the title and possession of the property, whichever is the later.
7.Compensation for fees and expenses for conveyancing to obtain title and expenses paid by the plaintiffs to make good any breach of vendor warranties in the Agreement (including without limitation, rates and other property outgoings), together with accrued interest and any awards of costs, be deducted from the settlement sum to be paid by the plaintiffs.
8.That five working days after the plaintiffs receiving title and possession of the property, whichever is the later, the amount to be paid by the plaintiffs on settlement, after deductions ordered above, be paid to the bank account nominated by the defendant and if no bank account is nominated, to the Court.
[13] For completeness, I record that as the period for filing the notice of opposition had not expired as at the date of the hearing, I indicated to Mr Meir that these orders were to lie in Court until that date. If prior to then a notice of opposition was received, these orders would continue to lie in Court pending further consideration by me. It transpires no notice of opposition was received.
Whata J
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