Cole v Maikuku

[2024] NZHC 1743

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-419-88

[2024] NZHC 1743

BETWEEN

GRAEME JOHN COLE and ROSANNA MARIA COLE

Plaintiffs

AND

PATRICK MAIKUKU

Defendant

Hearing:

17 June 2024

Appearances:

MJ Meier for the Plaintiff/Applicant

No appearance for the Defendant/Respondent

Judgment:

1 July 2024

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 1 July 2024 at 12 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Victoria Whitfield Barrister, Cambridge

COLE v MAIKUKU [2024] NZHC 1743 [1 July 2024]

Introduction

[1]        This application for summary judgment was called in the summary judgment list on 17 June 2024.

[2]        There was no appearance for the respondent, Mr Maikuku, and no notice of opposition or other documents have been filed or served. The plaintiffs have filed an affidavit of service dated 5 June 2024 evidencing service of the proceedings on the defendant on Thursday, 9 May 2024.

[3]I reserved my decision and now determine the application on the papers.

Background

[4]        The plaintiffs seek summary judgment of their claim for specific performance of a written contract dated 1 November 2023 under which the plaintiffs agreed to purchase and the defendant agreed to sell a property in Te Anga Road, Waitomo for

$265,000 (Sale and Purchase Agreement). An affidavit has been filed in support of the application by the second named plaintiff, Rosanna Maria Cole, dated 11 April 2024 providing evidence of the matters outlined below. Ms Cole confirms in her affidavit that she is authorised to swear the affidavit on behalf of her husband, Graeme John Cole, the first named plaintiff.

[5]        The Sale and Purchase Agreement included a term that the defendant agreed to remove the horses on the property at the defendant’s cost prior to settlement and as a condition of settlement.

[6]        In accordance with the contract, the plaintiffs paid a deposit of $26,500 on    6 November 2023.

[7]        On 10 November 2023 the defendant’s solicitors provided a settlement statement confirming that the amount required to settle the purchase the property was

$238,844.60 (Settlement Sum).

[8]        On 13 November 2023, the plaintiffs transferred $240,394.60 to their solicitor’s trust account to pay the Settlement Sum.

[9]        The settlement date was agreed as 15 November 2023 but the defendant gave notice on that date that the defendant was unable to remove the horses from the property. In response the plaintiff’s solicitor advised the defendant’s solicitor that the plaintiffs were ready, willing and able to settle and that settlement must proceed as soon as the horses had been removed.

[10]      On 17 November 2023 the plaintiffs were advised that the defendant had removed the horses.

[11]      On 20 November 2023 the plaintiffs advised that they were ready, willing and able to settle that day and registered a caveat on the title to the property.

[12]      The plaintiffs then served a settlement notice on the defendant on 21 November 2023 in accordance with cl 11.1(1) of the Sale and Purchase Agreement giving notice that the defendant was required to settle within 12 working days from the date of service of the notice.

[13]      The plaintiffs confirm in their evidence that the defendant has failed or refused to settle the sale of the property in accordance with the settlement notice.

[14]      By email dated 19 January 2024, the defendant’s solicitor advised that the defendant was happy for the deposit to be returned and for it to be agreed that the Sale and Purchase Agreement was at an end.

[15]      Clause 11.5 of the Sale and Purchase Agreement provides that if the vendor does not comply with the terms of the settlement notice served by the purchaser then, without prejudice to other remedies available, the purchaser may sue the vendor for specific performance or cancel the agreement by notice requiring the vendor to repay the deposit and any other money paid plus interest.

[16]      The plaintiffs confirm that the Settlement Sum is still held by the plaintiffs’ solicitors, and that they remain ready, willing and able to settle.

[17]      Having considered the Sale and Purchase Agreement, the plaintiffs’ affidavit of Rosanna Maria Cole, and the memorandum of counsel for the plaintiffs dated 14 June 2024, I am satisfied that the plaintiffs are entitled to summary judgment of their claim for specific performance and that on the evidence before the Court the respondent has no defence.1

Costs

[18]      The plaintiffs seek costs on a 2B basis in the amount of $10,755 in costs plus disbursements of $1,967. I agree that it is appropriate to award costs on a 2B basis and that the items included in the sum claimed in the plaintiffs’ memorandum dated 14 June 2024 appear appropriately sought. I therefore make an order for costs for that amount.

Result

[19]      I grant the plaintiff’s application for summary judgment and make the following orders:

(a)for specific performance directing the defendant to perform and settle the written agreement for sale and purchase dated 1 November 2023 within 15 working days of the date of this judgment; and

(b)for the defendant to pay the plaintiffs’ costs of this proceeding, including the application for summary judgment on a 2B basis, in the amount of $10,755 in costs plus disbursements of $1,967 for a total of

$12,722.

Associate Judge Sussock

1      High Court Rules 2016, r 12.2(1); Krukziener v Hanover Finance Ltd [2008] NZCA 187; [2010] NZAR 30 at [26].