Dibble v Civic Lane Limited

[2023] NZHC 1582

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-0028

[2023] NZHC 1582

BETWEEN

JOHN ANDREW DIBBLE

Plaintiff

AND

CIVIC LANE LIMITED

Defendant

Hearing:

13 June 2023

Appearances:

T J M Ashley for the Plaintiff

A M Cameron for the Defendant

Judgment:

23 June 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 23 June 2023 at 1.30 pm.

Pursuant to Rule 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

Solicitors:

Bankside Chambers, Eldon Chambers

Counsel:

Bankside Chambers, Eldon Chambers

DIBBLE v CIVIC LANE LTD [2023] NZHC 1582 [23 June 2023]

Introduction

[1]                  The defendant, Civic Lane Limited (Civic Lane) is the developer of a residential apartment building known as “The CAB” on Greys Avenue, Auckland Central. Prior to its construction, apartments in the development were marketed for sale on terms that are colloquially referred to as “off the plans”.

[2]                  The plaintiff, John Dibble, was  introduced  to  the  development  in  2020. Mr Dibble was not attracted to the size of the apartments that were on offer by Civic Lane so he negotiated terms to purchase one apartment to be constructed in what was originally conceived as the space to be occupied by two apartments. The parties signed an agreement for sale and purchase in December 2020 (the SPA).

[3]                  Construction of the apartment building was completed by October 2022, and settlement  of  the  sale   of  the  apartment  to  Mr  Dibble  was  to  take  place  on    1 November 2022. Prior to the settlement date, a dispute arose between the parties regarding the purchase price for the apartment, and in particular, whether Civic Lane was entitled to increase the purchase price for variations to the construction of the apartment.

[4]                  On 27 October 2022, Civic Lane issued a settlement statement to Mr Dibble, which included a claim for an increase in the purchase price of $167,795.14 due to variations to the construction of the apartment. Mr Dibble refused to settle on that basis, contending that his liability for variations was limited to the increased cost of certain bathroom fixtures and kitchen appliances selected by Mr Dibble, in total

$12,191.15.

[5]                  Neither party was prepared to settle on 1 November 2022 based on the price asserted by the other. On 2 November 2022, Mr Dibble issued a settlement notice to Civic Lane requiring settlement in accordance with Mr Dibble’s position on price. Civic Lane refused to settle on that basis.

[6]                  Mr Dibble now seeks an order by way of summary judgment for specific performance of the SPA on terms consistent with his position on price. Civic Lane

continues to maintain that it is entitled to claim variations of $167,795.14 as part of the purchase price.

Formation of the SPA

[7]                  The background that led to the  formation  of  the  SPA  is  largely  agreed. Mr Dibble was dealing with Civic Lane’s salesperson, Suzie Paine of Bayleys Real Estate Limited. On 19 October 2020, Ms Paine sent an email to Mr Dibble stating:

It appears that a BC combo plan hasn’t been done so we have a fabulous opportunity here to bespoke something for you.

Have a think about the 2 plans (both attached), and see if we can incorporate some features, ie the larger kitchen. The developer is happy to make the bathroom redesign with a bath and double vanity.

[8]                  On 16  December  2020,  Mr  Dibble  and  Ms  Payne  exchanged  emails.  Mr Dibble requested clarification on the standard specification, “especially regarding the kitchens, and including the appliances of the apartments.” Ms Paine responded by sending the standard specification, stating:

The included appliances are Bosch. I suspect you may wish to choose something else. I think that this will all come down to how the final plan looks and therefore what costs they can shift around to make the deal work for you.

Rest assured they will accommodate you where they can to satisfy you.

[9]                  On 18 December 2020, Ms Payne emailed Mr Dibble copies of the first two pages of the SPA countersigned by Civic Lane to comprise an offer to sell at the total price of $2,995,000. The covering email said:

I have put in another storage locker at no charge however this is the overall number that John [Love] can do the deal at.

He will absorb all the added costs of redoing plans etc and consultant costs to work with you to get a fabulous apartment that works for you.

John Love is a director of Civil Lane.

[10]On 19 December 2020, Ms Payne emailed Mr Dibble stating:

I spoke to John Love just after you and got him to agree the extra storage however he can’t change the cost of the apartment. He will do the deal at

$2,995,000 and he will absorb consultant costs etc going forward as he will be redesigning your apartment making it bespoke.

The purchaser elections are the heat pumps.

[11]Mr Dibble accepted the price of $2,995,000 and the SPA was signed.

The parties’ post-contract conduct

[12]              By the start of February 2021, the parties had agreed on a floor plan for the apartment. Mr Dibble, Ms Paine and Mr Love were all involved in the consultation that resulted in the agreed plan.

[13]              The parties then turned to drafting an electrical plan and on 18 February 2021, Ms Paine sent an email to Mr Dibble which included an electrical layout plan approved by Civic Lane.

[14]              In late February 2021, there was an exchange of emails between Mr Dibble, Ms Paine and Mr Love regarding the fitout and services. The emails confirm agreement regarding the layout of the kitchen; the addition of a Hi Wall air conditioning unit; two dishwashers in the kitchen; a 90 cm rangehood; and plumbed water to the loggia area.

[15]              On 22 April 2021, there was an exchange of emails between Ms Paine and Mr Love. The email exchange included reference to an oversized front door and a change in the colour of the kitchen cabinetry. One email from Ms Paine to Mr Love referred to the need to provide Mr Dibble with a “breakdown of extra costs”. This email  exchange  was  subsequently  forwarded  by  Ms  Paine  to  Mr  Dibble  on   23 April 2021 to keep him “in the loop”. Ms Paine did not draw Mr Dibble’s attention to the comment about extra costs.

[16]               In May 2021, there were further emails between Mr Dibble, Ms Paine and  Mr Love regarding thermal insulation to the walls of the wine cellar, and acoustic insulation to some of the internal partition walls. There is no evidence of any further communications about plans and specifications after May 2021.

[17]              The first communications direct to Mr Dibble in respect of an increase in the purchase price were emails from Mr Love to Mr Dibble on 16 and 17 February 2022. Mr Love attached invoices that Civic Lane had received from its designer and engineer, which totalled $50,704.94,  and  requested  payment  from  Mr  Dibble.  Mr Dibble denied liability to pay extra costs.

[18]On 1 March 2022, Mr Love sent an email to Mr Dibble requesting payment of

$75,603.60, which Mr Love described as “the final costs to come through”. Mr Love forwarded supporting information from the head contractor, Naylor Love:

(a)A variation worksheet dated 23 February 2022, for “Changes associated with the conversion of apartments 16c & 16d2 into a single apartment 16 c/d”. The total claimed was $43,545.86 plus GST.

(b)A variation worksheet dated 16 August 2021, for “Apartment 16.09C/D”, which lists various items which appear to be related to the fitout of the kitchen. The total claimed was $22,196.40 plus GST.

[19]On 30 March 2022, Civic Lane issued the following invoices to Mr Dibble:

(a)An invoice for the engineer’s fees of $31,027.00.

(b)An invoice for the designer’s fees of $19,677.94.

(c)An invoice for changes to the appliances for $5,880.76. This invoice was later re-issued for $7,110 and is accepted by Mr Dibble.

(d)An invoice for sanitary fixture changes for $5,080.39. This invoice is accepted by Mr Dibble.

(e)An invoice for kitchen and builders work changes for $75,603.99. This invoice reconciles with the total of the two Naylor Love variations when GST is added.

[20]              After Mr Dibble’s protest, Civic Lane withdrew its claim for the engineer and designer fees. At that stage, Civic Lane’s remaining claim for an adjustment to the purchase price was $87,795.14.

[21]              It was not until Civic Lane’s  solicitors issued the settlement statement  on   27 October 2022 that Civic Lane added a claim of $80,000, for “project management, sundry costs, and incidentals in relation to the specification changes”. Civic Lane did not render an invoice for this amount and has not produced any documentation to support this claim.

The material terms of the SPA

[22]              The subject property in the SPA was described as “Principal Unit(s): 16C/D” together with two carparks and two storage units. The purchase price was $2,995,000 including GST (if any). The price included $20,000 for “Hi Wall” heat pumps in the living area and master bedroom, as an optional extra selected by Mr Dibble.

[23]              Schedule 2 to the SPA contained a floor plan reflecting the property description. The plan was of the entire sixteenth level of the building and depicted principal units C and D as originally conceived by Civic Lane: two separate apartments with distinct floor plans. Beside the two units was the following handwritten annotation:

16 C/D combined-plan to be provided & agreed with purchaser

It is agreed that units C and D together comprised the area that was the subject of the SPA.

[24]              Schedule 3 to the SPA set out the “Outline Specifications” applicable to units in the development (the outline specifications).

[25]              Schedule 4 to the SPA contained general terms of sale taken from the ADLS/REINZ ninth edition standard form sale and purchase agreement.

[26]                Schedule 5, “General Terms of Sale (Amendments)”, and Schedule 6, “Further Terms of Sale”, were prepared by Civic Lane’s solicitors and contained terms apposite

to the typical transaction contemplated by Civic Lane, which involved selling an apartment according to the specific floor plans and specifications that had been prepared at the time of marketing.

[27]              Clause 23.1 of sch 6 required Civic Lane to proceed with and complete construction of the apartment building with due diligence, and in accordance with the floor plans and the outline specifications.

[28]              Schedule 6 also included clauses obliging Civic Lane to complete the unit title subdivision, and providing Civic Lane with flexibility regarding the final form of the floor plans, outline specifications and title to be issued. For example, cl 23.2 conferred on Civic Lane a unilateral right to revise or alter the floor plan, and to make substitutions for materials specified in the outline specifications.

[29]              Mr Dibble’s situation was novel because there was no floor plan for the apartment he was purchasing, other than the outline of principal units C and D. The only provision that was added to the SPA to deal with this novel situation was cl 20, which was inserted after the standard form ADLS/REINZ general terms in sch 4:

The vendor warrants that they will work with the purchaser to design an acceptable plan/layout of the apartment.

The purchaser acknowledges that should they request any specification outside that of the standard specification for the apartment then the purchase price may be adjusted accordingly to reflect such additions and in agreement with the purchaser.

The Purchaser understands that the Vendor has the right to refuse any change, which in the Vendor[’s] sole opinion may disrupt or delay the construction programme or otherwise be detrimental to the development and its tim[ely] completion.

[30]              The dispute between the parties rests on the proper interpretation of cl 20, and its application to the facts.

Summary judgment principles

[31]              The Court may give judgment against a defendant if satisfied that the defendant has no defence to a cause of action in the statement of claim.

[32]              The leading authority on  applications  for  summary  judgment  is  Krukziener v Hanover Finance Ltd.1 The Court of Appeal set out the following principles:2

(a)The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried. The Court must be left without any real doubt or uncertainty.

(b)The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated.

(c)The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as, for example, where the evidence is not consistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable. In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it.

[33]              The defendant is under an obligation to lay a proper foundation for the defence in the affidavits filed in support of the notice of opposition.3

[34]              Special care is required where specific performance is sought on summary judgment. The exercise of the Court’s discretion to order specific performance may give rise to issues that are different to those that arise when considering whether an arguable defence exists in respect of liability.4

1      Krukziener v Hanover Finance Ltd [2008] NZCA 187, (2008) 19 PRNZ 162.

2 At [26].

3      Middleditch v New Zealand Hotel Investments Ltd (1992) 5 PRNZ 392 (CA) at 394.

4      Hart v Bankfield Farm Ltd (2008) 9 NZCPR 685 (HC) at [39].

The parties’ positions and the issues

[35]              The plaintiff contends that cl 20, properly interpreted, required Civic Lane to build the apartment to a layout and specification to be agreed between the parties, and that  an  adjustment  to  the  purchase  price  could  only  be  made  if  agreed  by   Mr Dibble.

[36]              During submissions, this argument was refined to encompass two alternative arguments:

(a)that Civic Lane was obliged to obtain Mr Dibble’s agreement to a specified price for a requested change before work was completed; or

(b)in the alternative, that Civic Lane was obliged to obtain Mr Dibble’s agreement that a requested change entitled Civic Lane to adjust the purchase price before additional costs were incurred, notwithstanding that the value of the adjustment to the purchase price might be agreed after the change was implemented.

[37]              The plaintiff says that if either interpretation is accepted, there are sufficient undisputed facts to support a finding that Civic Lane is not entitled to any adjustments to the purchase price, other than those accepted by Mr Dibble which total $12,191.15.

[38]              The defendant argues that cl 20 permits variations for costs incurred in converting the floor plan and layout of the two units depicted on the plan in sch 2 to the SPA into the one apartment, as well as for any requested changes to the outline specifications. The “agreement” required of Mr Dibble under cl 20 was agreement to the work, not agreement that there would be a price increase. On that basis, Civic Lane argues that it has discharged the evidential onus upon it to raise a dispute as to the value of the adjustment to the purchase price that it is entitled to.

[39]The application for summary judgment gives rise to two issues:

(a)What is the proper interpretation of cl 20?

(b)If it is possible to interpret cl 20 based on the material before the Court, is there a factual dispute regarding the application of cl 20 so that summary judgment is not appropriate?

The proper interpretation of cl 20

[40]              Contractual interpretation requires ascertainment of the meaning the document would convey to a reasonable person having all the background knowledge that would reasonably have been available to the parties in the situation they were in at the time of the contract.5

[41]                   The starting point to interpretation is always the document itself, with the text being of central importance.6 However, evidence extrinsic to the document, such as pre-contract negotiations or post-contract conduct, may be admissible as an aid to interpretation if it has a tendency to prove or disprove anything of consequence for the objective approach to interpretation.7

[42]              In the present case, it is possible to interpret cl 20 by reference to the SPA alone in the context of the undisputed background.

[43]              Under the further terms of sale in sch 6, the only right or election afforded to Mr Dibble to alter the scope of work was the right to choose certain nominated extras, such as an alternative brand of kitchen appliances and heat pumps. The SPA specified a procedure that Mr Dibble was obliged to follow to exercise that right. Mr Dibble’s rights were significantly expanded by the addition of cl 20.

[44]              The opening words of cl 20, “[t]he vendor warrants that they will work with the purchaser to design an acceptable plan/layout of the apartment …”, created an obligation on the part of Civic Lane to consult with Mr Dibble regarding the floor plan

5      Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 (HL) at 912 and Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432 at [60].

6      Firm PI Ltd v Zurich Australian Insurance Ltd, above n 5, at [63].

7      Bathurst Resources Ltd v L&M Coal Holdings Ltd [2021] NZSC 85, [2021] 1 NZLR 696 at [88]– [90].

and layout of the bespoke apartment. Mr Dibble had the right to accept or reject a proposed “plan/layout”.

[45]              The use of the words “plan/layout” denote something more than a basic floor plan showing all internal partition walls. They are broad enough to encompass the layout of fixtures and fittings within the kitchen, bathrooms and other service rooms, consistent with the form of the plan of the original two principal units included in sch 2 to the SPA.

[46]              The mechanism for adjusting the purchase price in the second paragraph of  cl 20 was limited to any changes requested by Mr Dibble to the “standard specification”. Given that the outline specifications formed part of the SPA as sch 3, the reference to the “standard specification” in cl 20 was a reference to the outline specifications.

[47]              Significantly, cl 20 does not include any right for Civic Lane to adjust the purchase price for costs arising from the conversion of the floor plan and layout of the two principal units C and D into the floor plan and layout of a single apartment.

[48]              There is accordingly a distinction between costs associated with the new floor plan and layout of the apartment, which was the developer’s cost, and any changes to the specified products and materials in the outline specifications, which was the purchaser’s cost subject to compliance with any conditions.

[49]              I find that it was the objective intention of the parties that Civic Lane assumed the commercial risk regarding the cost of constructing a single apartment instead of two smaller apartments.

[50]              The last issue of interpretation is the meaning of the words “… in agreement with the purchaser”. The second paragraph of cl 20 did not confer on Civic Lane a unilateral right to increase the price as a result of a change to the outline specifications.

[51]              Use of the words “may be adjusted” in the second paragraph meant that the right to adjust the price was discretionary. The right was subject to a condition, requiring Civic Lane to obtain Mr Dibble’s “agreement”. This raises three issues:

(a)Agreement as to what?

(b)When was the agreement to be obtained?

(c)What form could the agreement take?

[52]              The mechanism in cl 20 for adjusting price was triggered when Mr Dibble requested a change to the outline specifications. Clause 20 does not expressly require Civic Lane to provide a price for a requested change for approval by Mr Dibble before Civic Lane implemented the change.

[53]              However, I do not accept Civic Lane’s argument that the only requirement was that Mr Dibble had to agree to extra work. That would render the words “… in agreement with the purchaser” otiose, as the “agreement” would be co-extensive with the request for a change to the outline specifications. Something more was required.

[54]              I do not accept that it was necessary for Civic Lane to obtain Mr Dibble’s approval to a fixed price for a requested change before the work was undertaken. That type of arrangement is common in construction contracts, and could have been expressly stated by the parties. The parties were content to adopt a more flexible arrangement.

[55]              I find that it was the objective intention of the parties that Civic Lane was required to obtain Mr Dibble’s agreement that a request by him amounted to a change to the outline specifications that would result in an adjustment to the purchase price.

[56]              Clause 20 does not prescribe whether Civic Lane was required to obtain this agreement before commencing the work. In my view it was open to Civic Lane to obtain Mr Dibble’s agreement, that a request by him amounted to a change to the outline specifications that would result in an adjustment to the purchase price, either before or after the work was completed.

[57]              However, if Civic Lane elected to implement a requested change to the outline specification before obtaining Mr Dibble’s agreement that the price would increase, then Civic Lane ran the risk of obtaining Mr Dibble’s agreement at a later time. Civic Lane had the option to decline to carry out a requested change until Mr Dibble agreed that there would be a price increase.

[58]              In summary,  I find that  it was the objective intention of the parties that  Civic Lane was entitled to increase the purchase price if Mr Dibble requested a change to the outline specifications and agreed that this was a change that would incur a price increase. There was no requirement that Mr Dibble’s agreement be communicated in a particular way. Mr Dibble’s agreement might be communicated in writing, orally, or by conduct.

The application of cl 20

[59]The total of the adjustments to the purchase price claimed by Civic Lane is

$167,795.14, comprised of the following components:

(a)sanitary fixture specification change — $5,080.39;

(b)appliance specification change — $7,110.76;

(c)“kitchen and other works specification changes”— $75,603.99 (the Naylor Love variations); and

(d)“project management costs, sundry costs, and incidentals in relation to the specification changes” — $80,000 (the project management costs).

[60]Items (a) and (b) are accepted by Mr Dibble.

[61]In respect of items (c) and (d), the issues are:

(a)Whether the amounts claimed by Civic Lane are for work associated with converting the floor plan and layout of principal units C and D into

that  of  a  single  apartment?    Any costs in this category are not recoverable under cl 20.

(b)Whether the amounts claimed by Civic Lane arise from changes to the outline specifications requested by Mr Dibble? The cost of these changes may be recoverable by Civic Lane if Mr Dibble agreed that the requested change would result in an adjustment to the purchase price.

(c)In the context of an application for summary judgment, where the plaintiff carries the overall onus, whether Civic Lane has discharged its evidential onus to put these factual matters into dispute?

(d)If so, whether it is possible to determine the factual issues at this summary stage of the proceeding?

The Naylor Love variations

[62]              The first of these variations, dated 16 August 2021, was for $22,196.40 plus GST. Ten items of work are listed in the variation claim that appear to relate to the fitout of the kitchen and scullery.

[63]              The floor plan of the kitchen, including a scullery, had been resolved by February 2021. Civic Lane was aware of this claim for a variation by Naylor Love from 16 August 2021.

[64]              If Civic Lane considered that Mr Dibble had requested specifications for the layout of the kitchen and scullery that were outside of the outline specifications, then Civic Lane  had  ample  opportunity  before  this  work  was  carried  out  to  seek  Mr Dibble’s agreement that the price would be adjusted. Civic Lane did not do so. Civic Lane assumed the risk that it would obtain Mr Dibbles agreement after the work was completed.

[65]              Civic Lane did not ask Mr Dibble to agree that these items of work would result in an adjustment to the purchase price at any time before forwarding the Naylor Love claim to Mr Dibble on 1 March 2022. Mr Dibble disputed the claim. The condition

in the second paragraph of cl 20, requiring Mr Dibble’s agreement to an adjustment of the purchase price, is not satisfied.

[66]              Naylor Love’s variation dated 23 February 2022, for $43,545.86 plus GST, lists thirteen items of work. The items relate to conversions in the floor plan from two principal units into one apartment. There is no explanation as to why Naylor Love delayed making this variation request to Civic Lane until 23 February 2022.

[67]              Civic Lane has not adduced any evidence to suggest that any of the thirteen items of work relate to a change in the outline specifications requested by Mr Dibble, with one exception, thermal insulation for the wine cellar.

[68]Civic Lane is able to point to a clause in the outline specifications which states:

Intertenancy walls to comply with NZBC 55 STC acoustic rating and required fire ratings.

The email exchange between the parties in April 2021 confirms that Mr Dibble requested two changes to this specification in the outline specifications:

(a)an extension of the acoustic rating to some internal partition walls; and

(b)thermal insulation for some internal partition walls.

[69]In respect of all other matters covered by Naylor Love’s variation for

$43,545.83, counsel for Civic Lane was unable to point to any specific term of the outline specifications that was changed at the request of Mr Dibble.

[70]              Other than the thermal and acoustic insulation, the balance of the work covered by the variation appears to be work arising from the conversion of two principal units into one, which is not subject to an adjustment in the purchase price under cl 20.

[71]              In respect of all of the work, including the thermal and acoustic insulation, there is no evidence that Civic Lane sought or obtained Mr Dibble’s agreement that his request would result in an adjustment to the purchase price until the Naylor Love

variation claim was forwarded to Mr Dibble on 1 March 2022. Mr Dibble disputed the claim. The condition in the second paragraph of cl 20 is not satisfied.

The project management costs

[72]              Civic Lane raised this claim for the first time when the settlement statement was issued on 27 October 2022. Civic Lane’s claim is contrary to Mr Love’s advice to Mr Dibble on 1 March 2022, that the Naylor Love variations were the “the final costs to come through”.

[73]              Civic Lane has produced no evidence to support its claim for this adjustment to the purchase price. Mr Love described these costs as follows:

The project management costs were based on a conservative assessment of the time and cost involved in achieving the final built outcome for the Dibbles. This included liaising with the head contractor, client supply agents such as Heathcotes (appliances) and Franklins (sanitary fixtures) and, where necessary, subcontractors such as Greenmont Espies (bespoke kitchen) to complete the significant physical works on site. A large quantity of time was required to be devoted to ensuring the works were completed in accordance with the plans. This is because changes like those requested by Mr Dibble veer away from the normal style of building where each apartment / typology is essentially a 'cookie cutter' replication.

[74]              I find that Civic Lane is not entitled to an adjustment to the purchase price in respect of the project management costs, for the following reasons:

(a)the value of the adjustment for the appliances and bathroom fixtures was settled when Civic Lane issued its invoices on 30 March 2022, which were agreed by Mr Dibble;

(b)insofar as the project management costs might relate to further changes in the outline specifications, Civic Lane failed to obtain Mr Dibble’s agreement that any such changes would result in an adjustment to the purchase price; and

(c)the project management costs otherwise arise from the conversion of a floor plan for two principal units into a floor plan for one apartment,

and not from a request from Mr Dibble for a change in the outline specifications.

Result

[75]              Mr Dibble has discharged the onus on him of establishing that there is no basis for a defence to his claim.

Remedies

[76]              On 1 November 2022, Mr Dibble was ready, willing and able to settle the SPA on the basis of his position on price. An order that Civic Lane now specifically perform the SPA, and complete its obligations owed to Mr Dibble on settlement, is appropriate.

[77]              Under cl 3.14(2)(a) of sch 4 to the SPA, Civic Lane is liable to pay Mr Dibble compensation. Mr Dibble can elect to recover his reasonable costs incurred for temporary accommodation and storage of chattels during the default period, or interest at the interest rate for late settlement on the entire purchase price during the default period.

[78]              Mr Dibble has a corresponding obligation under cl 3.14(2)(b) of sch 4 to the SPA to account to Civic Lane for an amount equivalent to the interest earned, or which would have been earned, on overnight deposit of the purchase price in Mr Dibble’s lawyer’s trust account during the default period, less withholding tax and related costs.

[79]              Before settlement can be completed, the parties should confer and agree on a settlement date, and any amount due from Civic Lane to Mr Dibble pursuant to cl 3.14.

Orders

[80]              I grant the plaintiff’s application for summary judgment and order the defendant to settle the SPA in accordance with the plaintiff’s settlement notice dated 2 November 2022.

[81]              I reserve leave to either party to apply for such further orders as may be necessary or desirable to give effect to the settlement of the SPA.

[82]              The defendant shall pay costs to the plaintiff on a 2B basis plus disbursements as fixed by the Registrar.

Associate Judge Brittain