Deare v Rumble

[2018] NZHC 1170

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-226

[2018] NZHC 1170

BETWEEN

WILLIAM LAURENCE DEARE, SAMUEL JOHN DEARE and MARILYN

AMY DEARE in their capacity as executors of the estate of the late Garth Burton Deare Plaintiffs

AND

PATRICIA CHRISTINE RUMBLE

Defendant

Hearing:

On the papers

Appearances:

R O Parmenter for Plaintiffs

No appearance by Defendants (no steps taken)

Judgment:

24 May 2018

JUDGMENT OF LANG J

[on application for judgment by formal proof]

This judgment was delivered by me on 24 May 2018 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

DEARE v RUMBLE [2018] NZHC 1170 [23 May 2018]

Background

[1]     The plaintiffs are the executors of the estate of the late Garth Burton Deare, who died at Wellington on 19 May 2017. At the time of his death Mr Deare and his sister, Ms Rumble, each owned an undivided one-half share in the property situated at 120 Sutherland Road, Melrose, Wellington.

[2]     Mr Deare agreed to purchase Ms Rumble’s share in the property in 2014. The terms of the agreement were recorded in a letter dated 26 November 2014 prepared by the law firm Rasch Leong Lawyers. Mr Deare signed the letter on 26 November 2014 and Ms Rumble counter-signed it on 9 December 2014.

[3]     The agreement called for a deposit of $129,500.00 to be paid by Mr Deare forgiving loans he had earlier made to Ms Rumble. In addition, Mr Deare agreed no interest would be payable on those loans provided his sister agreed to the sale of her interest in the property to him.

[4]     The balance of the purchase price was to be paid in three instalments as follows:

a)        December 2014	$70,500.00
b)        December 2016	$50,000.00
c)        December 2018	$50,000.00

[5]     The agreement did not provide what was to happen if any of the instalments was not paid within the prescribed month.

[6]Following execution of the agreement, Mr Deare paid his sister the sum of

$70,500.00 on 22 December 2014. The sum of $10,500 was deposited directly into Ms Rumble’s Australian bank account and the sum of $60,000 was paid into her New Zealand bank account. Both payments were made through the trust account of the law firm Rasch Leong.

[7]     The executors of Mr Deare’s estate now wish to complete the purchase of the property. Ms Rumble has indicated to them, however, that she believes the agreement came to an end several years ago. She has not, however, provided any details regarding the termination of the agreement. Nor has she suggested she has repaid the funds Mr Deare paid to her in December 2014.

[8]     The executors seek a declaration from this Court that the agreement remains in force and effect. The proceeding has been served on Ms Rumble in Australia but she has taken no steps to defend it. The executors therefore seek judgment against her by way of formal proof. This is based on affidavits filed in support of the claim by one of the executors, Mr Samuel John Deare.

Decision

[9]     The letter dated 26 November 2014 records the terms on which Mr Deare and Ms Rumble agreed to the sale and purchase of Ms Rumble’s share in the property. It is also signed by Ms Rumble, the party against whom the executors now seek to enforce the agreement. It therefore meets the requirements set out in s 24(1) of the Property Law Act 2007 in order to be enforceable. The agreement has also been partly performed by the forgiveness of the debt and the payment that Mr Deare made to  Ms Rumble on 22 December 2014.

[10]    The plaintiffs have not provided any explanation as to why Mr Deare did not pay the second instalment of $50,000.00 in December 2016. There is no evidence, however, that Ms Rumble has taken issue with that default or endeavoured to use it as a reason to cancel the agreement. The present proceeding provided the opportunity for Ms Rumble to advise the Court of any contrary view she might hold regarding this issue.

[11]    As a result, there is no evidence that the agreement has been terminated by either party. I therefore make a declaration that the agreement contained in the letter dated 26 December 2014 remains in force and is binding on the parties.

[12]    The plaintiffs will obviously need to make the payment that was due in December 2016 immediately to ensure they remedy the default that appears to have occurred in making one of the payments due under the agreement. The remaining payment is not due until December 2018.

Costs

[13]    At this stage I make no order as to costs. I do so in anticipation that the parties will now be able to resolve matters without any further intervention by the Court.

[14]    If the plaintiffs wish to seek an order for costs their counsel should file a concise memorandum setting out the costs that are claimed.

Lang J