Cyndicate Property Group v Jun HC Auckland CIV 2010-404-2397

[2010] NZHC 2143

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-002397

BETWEEN  CYNDICATE PROPERTY GROUP Plaintiff

ANDZEUNG JUN Defendant

CIV-2010-404-002398

AND BETWEEN            CYNDICATE PROPERTY GROUP Plaintiff

ANDSOUND WELLNESS LTD Defendant

CIV-2010-404-002399

AND BETWEEN            CYNDICATE PROPERTY GROUP Plaintiff

ANDMARGARET QU Defendant

[contd. over] Hearing:  12 November 2010

Appearances: M J Fisher and K Muston for Plaintiff

G W Halse for Defendants

Judgment:      12 November 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE BELL

Solicitors/Counsel:

McCaw Lewis Chapman, PO Box 9348, Hamilton
Foy & Halse, PO Box 26218, Auckland

M J Fisher, PO Box 3236, Auckland

CYNDICATE PROPERTY GROUP V Z JUN HC AK CIV-2010-404-002397  12 November 2010

[contd.]

CIV-2010-404-002400

AND BETWEEN            CYNDICATE PROPERTY GROUP Plaintiff

ANDJIAJUN QU ALSO KNOWN AS JUN QU Defendant

CIV-2010-404-002402

AND BETWEEN            CYNDICATE PROPERTY GROUP Plaintiff

ANDJINA PING WANG ALSO KNOWN AS JANE WANG

Defendant

CIV-2010-404-003111

AND BETWEEN            CYNDICATE PROPERTY GROUP Plaintiff

ANDCREATE & HOLDING LTD AND DAVID LEE

Defendant

CIV-2010-404-003114

AND BETWEEN            CYNDICATE PROPERTY GROUP Plaintiff

ANDTIAN HONG WANG Defendant

CIV-2010-404-003117

AND BETWEEN            CYNDICATE PROPERTY GROUP Plaintiff

ANDDAVID LEE ALSO KNOWN AS JIM QING LI

Defendant

[1]      In  these  eight  proceedings,  the  plaintiff  sues  purchasers  for  specific performance of agreements to purchase sections in its subdivision at Flagstaff on the northern outskirts of Hamilton.  In each case, the plaintiff seeks summary judgment. All the defendants oppose, saying that they validly cancelled each agreement under s

225(2)(b) of the Resource Management Act on the basis that the plaintiff had not made reasonable progress towards submitting a survey plan to the Hamilton City Council for its approval under s 223 of the Resource Management Act 1991.

[2]      The  principles  on  which  the  courts  decide  a  plaintiff’s  application  for summary judgment are well known and generally do not need repeating, but it may be worth reiterating this point about legal onus.  In a summary judgment application the onus is on the plaintiff to show that there is no defence.   In some cases, the plaintiff is able to pass an evidential onus to the defendant, for example, establishing a prima facie case which then leaves the defendant to show some tenable defence. Notwithstanding that, the overall position on onus is that, at the end of the day, the question  is  whether  the  plaintiff  has  satisfied the Court  as to  the absence of  a defence.

[3]      It is also worth repeating that, except for those cases falling within the well known dictum of Lord Diplock in Eng Mee Yong v Letchumanan [1980] AC 331 at

341 the Court cannot resolve genuine conflicts of evidence, cannot resolve the credibility of statements in affidavits and generally cannot resolve conflicts between experts.

[4]      The plaintiff has undertaken a very large residential subdivision at Flagstaff. The subdivision is called the Eton Estate.   On 15 August 2006, it obtained a subdivision  consent  from  the  Hamilton  City  Council  allowing  it  to  create  209 saleable  residential  lots  in  five  stages.    On  25  October  2006,  it  completed  the purchase  of  the  property.  It  did  not  immediately  set  about  subdivision  works. Instead, it carried out more design work and applied to Hamilton City Council for a change of conditions to the subdivision consent.   Its redesign work went from 25

October 2006 until June 2007. According to a report made by Mr Benning, an expert surveyor retained for the plaintiff, it set about to redesign the subdivision from a

standard residential subdivision into a high quality urban subdivision incorporating a “Central  Urban  Greenway”,  focusing  on  forming  a  lively  community  around  a central neighbourhood hub.

[5]      In July 2007, the plaintiff began marketing sections.  Between July 2007 and October 2007, it entered into some agreements for sale and purchase for some of the lots, some of those being the ones in issue in this case.

[6]      On 14 November 2007, the Hamilton City Council approved the change of conditions for the resource consent granted the year before.  This resulted in a new plan for the subdivision with quite significant changes to roading layout and similar matters.   After it received that approval, the plaintiff’s engineers and  surveyors began detailed engineering plans and then completed contract documents for the subdivision works. That contract was let in the New Year and the contractor came on site early in 2008.  According to Mr Benning, the civil construction work ran from January 2008 to 3 September 2009.  The plaintiff’s surveyors carried out the field surveys so that the survey plan could be presented to the Hamilton City Council for approval under s 223 of the Resource Management Act.   It was submitted to the Hamilton City Council on 13 September 2009.  New titles issued in December 2009.

[7]      The agreements the subject of this proceeding are:

Purchaser David Lee	Date of Agreements 15 July 2007	Lot Numbers 6 and 23
31 October 2007	114 and 115
Create & Holding Ltd	24 July 2007	8
Sound Wellness Ltd	15 February 2008	116, 117 and 118
Zeng Jun	15 July 2007	29 and 33
Tian Hong Wang	15 February 2008	119, 120, 121, 122 and 123
Margaret Qu	25 March 2008	133 and 134

Jina Ping Wang	25 March 2008	136 and 137
Jia Jun Qu	25 March 2008	10 and 11

[8]      Barring one difference, every agreement has the same terms.  The Real Estate Institute of New Zealand/Auckland District Law Society form,  8th edition 2006, has been used with further terms of sale, draft covenants, purchaser’s bond, draft easements and initial scheme plan and subdivision attached.  In particular, there are these relevant conditions:

4.1Development:      The   Vendor   will   proceed   with   completion   of   the Development and complete the Works in a proper and workmanlike manner and, subject always to the provisions of this Agreement, substantially in accordance with the Scheme Plan.

4.2      Subdivision Plan: The Vendor will (at the Vendor’s cost):

4.2.1    prepare the Subdivision Plan;

4.2.2    comply with any statutory or other lawful requirements of the Territorial

Authority relating to the Development;

4.2.3    obtain approval of the Subdivision Plan by the Territorial Authority and

LINZ;  and

4.2.4deposit the Subdivision Plan and take all other steps necessary to obtain a separate title for the Lot.

4.3       No Time Period:  The Developer will use its best endeavours and do all things reasonably necessary to ensure the Deposit of the Subdivision Plan at LINZ at the earliest possible date.  The Developer is not obliged to obtain Deposit of the Subdivision Plan by any fixed date or will the Purchaser be entitled to make any claim against the Vendor for any delays which may occur in the Deposit of the Subdivision Plan and the issue of that title for the Lot.

4.4Sunset:  If for any reason the Developer has not been able to obtain Deposit of the Subdivision Plan at LINZ within the time period specified in clause

4.5.2 (time being of the essence) then either party may by notice in writing to the other cancel this agreement and upon cancellation the Purchaser will

be entitled to a refund of the Deposit paid and neither party will have any further claims or rights against the other.

4.5      Section 225 Resource Management Act 1991:   In consideration of the

Vendor entering into this agreement with the Purchaser, the Purchaser:

4.5.1     agrees that the Purchaser has contracted out of the provisions of section

225(2)(a) of the Resource Management Act 1991 and waives the right to the

14 day cancellation provision set out therein;  and

4.5.2    agrees that the provisions of section 225(2)(b) of the Resource Management Act 1991 are modified to provide for a period of three years from the date of this agreement, this variation being agreed due to the nature of the Works required to be undertaken by the Developer to complete the Development.

[9]      Condition 8.3 prevents a purchaser objecting to any alteration or variation to the scheme plan or subdivision as may become necessary by the direction of the territorial authority or by the practical exigencies of the subdivision. It goes on to say:

The vendor reserves the right to at any time alter or vary the scheme plan or subdivision plan including, but not in limitation, the addition, alteration, variation or cancellation of any proposed easement shown on any such plan in such manner as the vendor in its sole and absolute discretion considers appropriate having regard to the circumstances, provided the purchaser has been entitled to a reduction to the purchase price and any alteration to the area of the lot  materially diminishes the value of the lot. ...

[10]     That  provision  operates  somewhat  counter  to  another  provision  for  the vendor to complete the subdivision substantially in accordance with the scheme plan.

[11]     Special condition 8.7 says:

The vendor makes no warranty as to when the subdivision plan will be deposited at LINZ nor as to when the purchaser will be able to register a memorandum of transfer of the lot to the purchaser.

[12]     The general provisions of the further terms also include an entire agreement clause,  condition  12.5,  where  the  purchaser  acknowledges  they  have  not  been induced to enter into the agreement by any representation, verbal or otherwise, made by the vendor which is not set out in the agreement.   It also says that it is the responsibility of the purchaser to satisfy itself that the property will be suitable for the purchaser’s purpose, and as to the truth and accuracy of any information given to the purchaser.

[13]     The agreements entered into before November 2007 also contain condition

16, which makes the agreement conditional upon the vendor confirming in writing to the purchaser by 16 November 2007 that the vendor in its sole discretion is satisfied

with  the  terms  and  conditions  of  the  resource  consents  in  relation  to  the development.   It is also conditional on the vendor confirming in writing to the purchaser by 21 December 2007 that the vendor has entered into a sufficient number of sale agreements similar to this agreement to satisfy the vendor that a certain economic threshold has been made in relation to the completion of the development. The purchasers will not be entitled to challenge, or seek to have reviewed, the decision of the vendor under the clause.    Condition 16.2 says that the condition is for the sole benefit of the vendor and may be waived by the vendor at any time. Condition 16, as I say, is unique to agreements entered into before November 2007. Clearly the vendor did not need to retain that for the later agreements as it had already made the decision to proceed. It is apparent that by November 2007, the vendor had arranged finance to proceed with the development.

[14]     During 2009, the defendants made their own inquiries and found that the survey plan had not been approved by the Hamilton City Council.  Following these inquiries on 5 August 2009, the defendants’ lawyer wrote letters to the plaintiff’s lawyers all in the same terms.  In effect they say:

I give notice that my client hereby rescinds the agreements pursuant to the provisions of s 225(2)(b) of the Resource Management Act 1991.  It is not accepted that the parties can contract out of that provision of the Act and therefore further term of the sale 4.5 is a nullity.

The subdivision consent and resource consent were approved on 15 August

2006.  It is now almost three years since the approval and it is not accepted that the vendor has made reasonable progress towards depositing the survey plan as no steps have been taken to do so despite two years and eleven months having elapsed. ...

[15]     These proceedings have followed after title had issued and the plaintiff had pressed for settlement.  These issues arise:

a)        Is condition 4.5 of the further terms of sale effective to displace the operation of s 225 of the Resource Management Act 1991?

b)If the answer is “yes”, are the defendants entitled to rescind under clause 4.5.2?

c)       If the answer is “no”, do the defendants have an arguable defence that they are entitled to rescind because the plaintiff has not made reasonable progress towards submitting a survey plan to the Hamilton City Council for approval under s 223 of the Resource Management Act?

d)If all these matters are resolved in the plaintiff’s favour, are there grounds for the Court in its discretion not to award specific performance?

Is condition 4.5 of the further terms of sale effective to displace the operation of s 225 of the Resource Management Act 1991?

[16]     Section 225 of the Resource Management Act says:

225     Agreement to sell land or building before deposit of plan

(1)Any agreement to sell any land or any building or part of any building that constitutes a subdivision and is made before the appropriate survey plan is approved under section 223, shall be deemed to be made subject to a condition that the survey plan will be deposited under the Land Transfer Act

1952 or in the Deeds Register Office, as the case may be; and no such agreement is illegal or void by reason that it was entered into before the

survey plan was deposited.

(2)Subject to subsection (1), any agreement to sell any allotment in a proposed subdivision  made  before  the  appropriate  survey plan  is  approved  under section 223 shall be deemed to be made subject to the following conditions:

(a)That the purchaser may, by notice in writing to the vendor, cancel the agreement at any time before the end of 14 days after the date of the making of the agreement:

(b)       That the purchaser may, at any time after the expiration of 2 years after the date of granting of the resource consent or one year after the  date  of  the  agreement,  whichever  is  the  later,  by  notice  in writing to the vendor, rescind the contract if the vendor has not made reasonable progress towards submitting a survey plan to the territorial authority for its approval or has not deposited the survey plan within a reasonable time after the date of its approval.

(3)An agreement may be rescinded under subsection (2) notwithstanding that the parties cannot be restored to the position that they were in immediately before the agreement was made, and in any such case the rights and obligations of each party shall, in the absence of agreement between the parties, be as determined by a Court of competent jurisdiction.

[17]     The claim by the plaintiff that it is possible to contract out of provisions such as s 225 of the Resource Management Act is founded on the proposition that a person may renounce a right which exists solely for his or her own use or benefit. This is sometimes expressed in the Latin maxim “qui libet potest renunciare juri pro se introducto”.  The underlying principle is that, where particular words of a statute confer a privilege, a party may forgo that privilege.  However, the authorities also establish  that  the  principle applies  only in  respect  of  private  rights  and  private remedies.  If there is a public, as well as a private, interest that governs the situation the principle does not apply.

[18]     In Johnson v Moreton [1980] AC 37 at 69, Lord Simon of Glaisdale said:

The principle which, in my view, emerges from this line of authority is as follows.  Where it appears that the mischief which Parliament is seeking to remedy is that a situation exists in which the relations of parties cannot properly be left to private contractual regulation, and Parliament therefore provides  for  statutory  regulation,  a  party  cannot  contract  out  of  such statutory regulation (albeit exclusively in his own favour), because so to permit would be to reinstate the mischief which the statute was designed to remedy and to render the statutory provision a dead letter.

[19]     I consider how the principle applies in this case.

[20]     Section 225 falls within Part 10 of the Resource Management Act, which deals  with  subdivisions and  reclamations.    The  Resource  Management  Act  is  a public law statute.   Part 3 imposes general duties on all persons, including the Crown.  Those duties are imposed to achieve the purpose of sustainable management and the other objectives in Part 2 of the Act.   The application of those duties is affected by the provisions of plans under Part 5 of the Act.  Compliance with those duties and the plan provisions may be dispensed with by the grant of resource consents.   Part 6 sets out the provisions for resource consents.   Making plans and granting consents are all part of a public law process.

[21]     Section  11  imposes  a  duty against  subdivision  except  where  allowed  by District Plan rules or by a resource consent.   A subdivision consent is a resource consent permitting a subdivision despite the duty under s 11.

[22]     Generally, the Resource Management Act has little to say about private law rights. There are provisions for the transfer of resource consents.  Section 122 makes it clear that a resource consent is neither real nor personal property.

[23]     Section 225 stands alone as being the only provision in the Act expressly addressing contractual issues between persons who need not be public authorities under the Act.

[24]     Section 225 is in almost the same terms as s 307 of the Local Government Act 1974.   It appears to be the only provision in the Resource Management Act which repeats an earlier statutory provision.

[25]     Under s 225(2), an agreement to sell a lot in a proposed subdivision made before the appropriate survey plan is approved under s 223 is deemed to be made subject to two conditions.  The first condition allows a cooling off period of 14 days after the making of an agreement.   Within that 14 day period, the purchaser can cancel the agreement.  The second gives the purchaser a right to rescind at any time after the expiration of two years after the grant of a consent, or after the expiration of one year after the date of the agreement, whichever is the later, if either the vendor has not made reasonable progress towards submitting a survey plan, or the vendor has not deposited the survey plan within a reasonable time after the date of its approval.

[26]     In this case, I am satisfied that Parliament was intending a wider public purpose and was not simply dealing with private interests which individuals might renounce in contracts.

[27]     I note the use of “deemed” in s 225(2).   “Deemed” is used  extensively throughout the Resource Management Act.  It appears at least 250 times.  In almost every case, it operates conclusively.    Sometimes “deemed” is used in a rebuttable sense, that is, it creates a presumption but other considerations can show that it does not apply.   On the whole, throughout the Resource Management Act, it applies conclusively in the sense that no evidence, or argument or agreement can be used to upset those provisions. This use of “deemed” applies in the case of s 225(2).   If

Parliament  has  deemed  that  an  agreement  contains  these  terms,  then  that  is conclusive and nothing can be said or done to say that the agreement does not contain those terms, or that those terms can be modified.  Contractual modification cannot upset what Parliament has ruled must be a term of the contract.  Rather than go through every use of “deemed” in the conclusive sense in the Resource Management Act, I might better illustrate the point by referring to provisions where it is used only in a presumptive sense.  The provisions that I have been able to locate are ss 352(5) and 352(a) and clause 28 of the First Schedule.  Examination of those provisions will show that either a local authority in the First Schedule can decide not to follow a deemed provision, and ss 352 and 352(a) relate to service provisions where a person is deemed to be served if certain procedures are followed, unless evidence to the contrary is shown.  I see nothing within s 225(2) to show that any such contrary indications are permissible to upset the application of Parliament’s intention.  That is, if Parliament had intended that it be possible to contract out of s

225(2), I would have expected Parliament to have stated whether and to what extent contracting out was permissible.   The omission seems deliberate, rather than legislative slovenliness.

[28]     Next,  s  225(2)  is  clearly  intended  to  operate  as  a  form  of  consumer protection.   This is clearly the intent of the cooling off period under s 225(2)(a). Consumer protection provisions are commonly regarded as provisions that have a wider public purpose and may not be contracted out of.   In this regard, the Fair Trading Act 1987 is an obvious example.  It does not contain any express provision preventing contracting out, but the courts consistently recognise that as a public law, it must apply regardless.

[29]     I have no doubt that in enacting s 307 of the Local Government Act and s 225 of the Resource Management Act, Parliament had in mind that purchasers might enter into agreements to buy a section in a subdivision still in the course of development, and they might pay a deposit, or they might sign up to terms which are strongly in favour of a developer, and give the developer enormous protections as to the way it undertakes its development, including the timing of issue of title. Parliament was, in my view, concerned to see that those people were protected. Mr Fisher submitted that the defendants in this case were commercial people and

they did not need protection. It may well be that there are people who enter into contracts  under  s  225(2)  who  can  stand  up  for  themselves  and  do  not  need protection.  But Parliament has seen fit to lay down this rule to cover all purchasers, whether they are vulnerable people or not.   The wisdom of such provisions is for Parliament to decide.  It is not for me to comment on the wisdom of the provision. It is simply for me to apply Parliament’s intention.

[30]     I note that Paterson J came to a similar view in Vahora v TSE (1999) 4 NZ ConvC 192,923 (HC).

[31]   The plaintiff referred to the decision Spijkerman v Featherston Park Developments Ltd [2009] NZCA 381, [2009] ANZ ConR 9-036 as an authority in its favour. That case concerned an agreement for sale and purchase of a development on land called the St Petersburg Estate, which abuts this plaintiff’s development. The developer in that case included further conditions of sale in the same terms as clauses 4.2, 4.3, 4.4 and 4.5 in the agreements in this case. In that case, the Court of Appeal held that the purchasers were entitled to cancel under these provisions and recited s 225 in its judgment. It is clear from the judgment that no argument was addressed as to whether the parties could contract out of s 225. The purchasers in Spijkerman were content to rest on their rights set out in the contractual provisions without taking the point that it was not possible to contract out of s 225.  Given the absence of any argument on the question at issue, Spijkerman v Featherston Park Developments Ltd is not authority for the plaintiff in this case.

[32]     I therefore conclude that clause 4.5 is ineffective to alter the application of the deemed condition under s 225(2)(b) of the Resource Management Act in the agreements for sale and purchase in this case.

If the answer is “yes”, are the defendants entitled to rescind under clause 4.5.2?

[33]     It  is  accordingly  not  necessary  for  me  to  consider  the  second  question. However,  I record  that  in  all  cases,  the plaintiff submitted  the survey plan  for approval within three years of each agreement.  If clause 4.5.2 could be applied, then the plaintiff would be entitled to rely on it to say that the time for rescission had not

arisen.   In this regard, I follow the decision of Associate Judge Abbott in DBCL Developments Ltd v New Season Investments Ltd HC Auckland CIV-2008-404-6058,

24 June 2009, that a purported cancellation for delay by a developer cannot be asserted until the times for approval of the survey plan, or issue of title given in the contract or under s 225, have arisen.

If the answer is “no”, do the defendants have an arguable defence that they are entitled to rescind because the plaintiff has not made reasonable progress towards submitting a survey plan to the Hamilton City Council for approval under s 223 of the Resource Management Act?

[34]     I remind myself that in the context of a summary judgment application, the onus remains on the plaintiff to show that the defendants do not have an arguable case that they were entitled to rescind.

[35]     The relevant dates when the defendants could have rescinded are set out in the following table:

Purchaser	Date of Agreements	Lot Numbers	Earliest possible date to cancel
David Lee	15 July 2007 31 Oct 2007	6 and 23 114 and 115	15 August 2008 31 Oct 2008
Create & Holding Ltd	24 July 2007	8	15 August 2008
Sound Wellness Ltd	15 Feb 2008	116, 117 and 118	15 Feb 2009
Zeng Jun	15 July 2007	29 and 33	15 August 2008
Tian Hong Wang	15 Feb 2008	119, 120, 121, 122 and 123	15 Feb 2009
Margaret Qu	25 March 2008	133 and 134	25 March 2009
Jina Ping Wang	25 March 2008	136 and 137	25 March 2009
Jia Jun Qu	25 March 2008	10 and 11	25 March 2009

[36]     I have heard extensive argument as to what amounts to reasonable progress in the context of this case.  I record these matters about the evidence and submissions.

[37]     The  evidence  showed  that  from  the  grant  of  consent  to  the  changed subdivision conditions in November 2007, the plaintiff moved properly to get engineering plans prepared and arranged for a proper contractor to carry out the works.   There was useful evidence about the contract and the time taken for the works.   The evidence showed what you would expect to see a developer do in arranging for subdivision works to be carried out.  The contract contained liquidated damages  provisions  for  delay,  and  provision  for  bonus  payments  for  early completion.   There was useful documentary evidence as to rain events which prevented work being carried out, and good reasons given for extensions of time. This evidence points to reasonable progress being applied.

[38]     What I have learnt from this case is a change in procedure in arranging for survey plans.  The field surveys were carried out at the end of the subdivision works. It has been explained, and accepted by the defendants’ expert witness, that that is now the way that the survey work is carried out.  In this regard, s 225(2) may be out of date in that it contemplates field surveys necessary for a survey plan being carried out early in  the  day,  rather  than  after  subdivision  works  have  been  completed. Likewise,  I see no reason for considering there has been undue delay after the subdivision works were completed.  There was progress towards obtaining approval of the survey plan and deposit of title.  That all seems to have been done in good time.

[39]     There  are,  however,  some  questions.    The  defendants  have  retained  a surveyor, Mr Churchill, with some 29 years’ experience, who has had an opportunity to examine the plaintiff’s records and has commented on them.   He takes some points.  He comments that the development could have been better staged so as to bring about title earlier.  He commented on the time taken by the contractors.  He is critical of the extent of works carried out.  The contract works were for some 109 lots which could be increased to 129 lots.  He queries whether such extensive work was required.  I note that the plaintiff has countered that by giving its reasons why it undertook works on such a large scale.

[40]     I am left with a significant problem in this case.  That is, how to deal with the period from August 2006 until November 2007.   It is quite clear that in terms of s 225(b), time was running against the plaintiff starting from when the initial consent was issued.  During that period, the plaintiff did not immediately arrange for field surveys and did not immediately arrange for subdivision works to be carried out, but instead engaged in a redesign of the subdivision.  At this stage, I do not have enough information to say conclusively that the plaintiff was making reasonable progress during that period. There is a gap for that period which remains a question mark in my mind.  It is possible that the plaintiff may be able to explain the reasons behind the redesign during that period, and why that period cannot be brought into account in assessing whether  reasonable progress  has been made during the subdivision process.   In particular, an argument put by the plaintiff which may carry a lot of weight at trial is that the defendants entered into their agreements once that redesign progress was well under way.  They bought lots which were shown in the scheme plan approved in 2007.  They did not buy lots referable to the prior scheme plan.  It may seem rather odd, that purchasers who have come in partway down the track and after any delay has occurred, can complain of delay that occurred before the contract. That is a matter best assessed at trial.   It is a matter that certainly weakens the defence, but it must be remembered in a summary judgment context that simply because  a  defence  is  weak,  does  not  mean  that  it  can  be  ruled  out  of  hand completely.  Mr Fisher urged on me to take a robust approach and there is certainly authority enough for that.  But I have to take into account that there is conflicting evidence between experts.  The Court of Appeal’s decision in MacLean v Stewart (1997) 11 PRNZ 66 is a warning against trying to resolve conflicts between experts at the summary judgment stage.

[41]     Accordingly, because I am not able to resolve this reasonable progress issue satisfactorily at this stage, a fuller hearing is necessary.  I decline the applications for summary judgment.

Are there grounds for the Court in its discretion not to award specific performance?

[42]     As I dismissed the summary judgment application, it is not necessary to consider the discretion as to the grant of relief.   However, if I had found for the plaintiff, there is nothing in the evidence that suggests that specific performance ought not to have been granted.

[43]     I now give these directions for the future conduct of the case:

a)        The  defendants  are  to  file  and  serve  statements  of  defence  by

26 November 2010;

b)        All   parties   are  to   file  and   serve   affidavits   of   documents   by

17 December 2010;

c)        Documents are to be inspected by 11 February 2011;

d)Any interrogatories are to be given by 25 February 2011 and are to be answered within a further 10 working days;

e)        There is to be a further case management conference in March 2011.

By that date, the parties are expected to provide the Court with a list of issues, any proposals for alternative dispute resolution or judicial settlement conference, number of witnesses, number of expert witnesses, and an estimate as to required hearing time.

[44]     Costs on the summary judgment application are reserved.

R M Bell

Associate Judge