Enzo Ltd v Boulcott Realty no.1 Limited HC Auckland Civ-2004-404-6904 - [2005] NZHC 1689

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2004-404-006904

IN THE MATTER OF s.145 of the Land Transfer Act 1952 AND
IN THE MATTER OF Caveat Number 6213895.2

BETWEEN ENZO LTD
Applicant

AND BOULCOTT REALTY NO.1 LTD
Respondent

Hearing: 27 April 2005

Appearances: Anthony Banbrook for Applicant
David Smyth for Respondent Judgment: 5 May 2005

JUDGMENT OF HARRISON J

In accordance with R540(4) I direct that the Registrar endorse this judgment with the delivery time of 1.00 p.m. on 5 May 2005

SOLICITORS
David Welch (Kerikeri) for Applicant
Simpson Dowsett Mackie (Auckland) for Respondent

COUNSEL
AD Banbrook; DE Smyth

ENZO LTD V BOULCOTT REALTY NO.1 LTD HC AK CIV-2004-404-006904 [5 May 2005]

Introduction

[1] At issue in this case is whether or not a party can sustain a caveat lodged against title to a property at Warkworth based upon a claim of part performance of an oral agreement for sale and purchase.

Background

[2]The relevant background circumstances are as follows:

1)At all relevant times Mr Stanley Cobbold was a real estate agent living in Kerikeri. He was Enzo Ltd’s sole director. Mr Ranginui Bidois also lived in Kerikeri. The two were friendly. In early 2004 they engaged in discussions about land which Mr Cobbold understood Mr Bidois was developing in Pulham Road, Warkworth. The land was then owned by Boulcott Realty No.1 Ltd. Its sole director is Mr Stuart Robertson;

2)Mr Bidois showed Mr Cobbold an aerial photograph of the proposed subdivision. The latter expressed an interest in buying a piece of land marked out as Lot 17. Mr Bidois gave Mr Cobbold a copy of an amended scheme plan identifying Lot 17 together with a list of values for all lots which Mr Bidois described as “an estimated market appraisal”;

3)Mr Cobbold says that he agreed with Mr Bidois to purchase Lot 17 or an equivalent area of 1.23 hectares for $300,000 plus GST; that he explained he would buy through Enzo; that Mr Bidois required a site office; that he offered to supply a relocatable cabin already owned by Enzo valued at $30,000 to constitute the deposit being the equivalent of 10% of the purchase price; and that in early April 2004, in accordance with their agreement, he delivered the cabin to Northern Concrete Products Ltd which transported it from Kerikeri to the

subdivision at Warkworth for $1102.50 including GST which Mr Bidois paid;

4)In early July 2004 Mr Robertson at Mr Cobbold’s request arranged for Boulcott’s solicitors, Simpson Dowsett, to forward to Mr Cobbold’s solicitor, Mr David Welch, a contract which was incomplete in all material respects except for its inclusion of an incorrect reference to Lot 11. Mr Welch completed the document including the name of Enzo or nominee as purchaser and a sale price of $270,000 including GST. He amended the property description to Lot 17. The agreement did not contain details of a deposit or provision for payment of the balance of the purchase price. Nor did it nominate a possession date. Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Enzo Ltd v Boulcott Realty no.1 Limited HC Auckland Civ-2004-404-6904 [2005] NZHC 1689
Case: [2005] NZHC 1689
Decision Date: 5 May 2005

CaseChat Overview and Summary

In Enzo Ltd v Boulcott Realty no.1 Limited, the court was tasked with determining whether Enzo Ltd could sustain a caveat against the title of a property in Warkworth based on an alleged part performance of an oral agreement for the sale and purchase of the property. Enzo Ltd claimed that it had agreed to purchase a piece of land for $300,000 plus GST and had provided a relocatable cabin as a deposit. The court had to decide whether there was a sufficiently arguable case for part performance of an oral contract.

The court examined whether the elements of part performance as outlined in TA Dellaca Ltd v PDL Industries Ltd were met. This involved determining if there was a sufficient oral agreement, if there had been part performance of that agreement, and whether it would be unconscionable for Boulcott Realty no.1 Limited to rely on the statute. The court found that Enzo Ltd had not met the threshold for establishing a reasonably arguable case. There was no evidence that Mr Bidois, who negotiated on behalf of Boulcott, had the authority to bind the company. Furthermore, there was a fundamental lack of consensus between the parties on essential terms such as the purchase price. Mr Cobbold's own statements and documentary evidence suggested that the parties had not progressed beyond negotiations and did not intend to be bound until a formal written agreement was signed.

The court concluded that Enzo Ltd could not sustain its caveat and dismissed the application. The court ordered Enzo Ltd to pay costs to Boulcott Realty no.1 Limited.

Orders