Ford v Coumat Limited - [2016] NZHC 2810

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2016-404-002692 [2016] NZHC 2810

UNDER Land Transfer Act 1952

IN THE MATTER OF

an application by a registered proprietor for the early lapse of a caveat against dealings

BETWEEN

KERRY JAMES FORD Applicant

AND

COUMAT LIMITED Respondent

Hearing: 21 November 2016

Appearances:

M F Mabbett for the Applicant
P F Dalkie for the Respondent

Judgment:

24 November 2016

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on
24.11.16 at 3:00pm, pursuant to
Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

KERRY JAMES FORD v COUMAT LIMITED [2016] NZHC 2810 [24 November 2016]

The application

[1] The applicant, Mr Ford applies to sustain his caveat over a property owned by the respondent (Coumat).

[2] Mr Ford’s application is based on an agreement for sale and purchase dated

13 January 2016. His caveat was lodged on 22 February 2016. There is no issue that, when the caveat was lodged, Mr Ford had a caveatable interest. However, it is Coumat’s position that it validly cancelled the agreement for sale and purchase in reliance on the settlement notice issued pursuant to its terms.

[3] In dispute is the validity of Coumat’s cancellation. Mr Ford says the cancellation was not valid because at all material times, including when the settlement notice was issued, Coumat was in breach of the parties’ contract; and that Coumat was acting in bad faith in deliberately undermining the contractual bargain reached with Mr Ford.

Mr Ford’s case - overview

[4] Mr Ford says the land was sold to him for the purpose of the development of a residential subdivision and that Coumat was required to give him access to the land for that purpose. Instead it is claimed that Coumat actively and dishonestly sought to undermine the prospects of that development. It is Mr Ford’s position that while those are serious allegations they are consistent with the evidence and reflect Coumat’s financial motive in keeping the deposit of $550,000 paid, and securing the benefits of Mr Ford’s work on the site.

[5] The focus of Mr Ford’s application was upon claims of attempts by Coumat to undermine the development. Three affidavits have been filed in support. One of those by Mr Ford contains a chronology of the dispute including, it is claimed, evidence of Coumat’s conduct.

[6] An affidavit has also been filed by Mr Scott, a solicitor of the firm that acted for Mr Ford at the time. The third is an affidavit of Mr Carajannis, the President of

the Whitford Golf Club. It is claimed that affidavit confirms certain aspects of Mr

Ford’s allegations.

[7] Mr Ford has also filed a short reply affidavit.

[8] It is at the centre of Mr Ford’s case that his contract relied on an implied term that Coumat would refrain from any conduct that was dishonest and was intended to undermine the contractual bargain. Mr Ford says that a limited term against bad faith is implied into…

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.

Continue reading Ford v Coumat Limited

Details

AGLC: Ford v Coumat Limited [2016] NZHC 2810
Case: [2016] NZHC 2810
Decision Date: 24 November 2016

CaseChat Overview and Summary

Kerry Ford applied for his caveat over a property owned by Coumat Limited to be sustained. Ford lodged the caveat on 22 February 2016. The property in question was subject to a resource consent for a residential development. An agreement for sale and purchase was entered into on 13 January 2016. The contract provided for settlement on 29 July 2016. The contract was not settled on 29 July because claims of a set off were not accepted. Coumat issued a settlement notice on 22 August 2016. Ford responded by lodging a caveat on 22 August 2016. Coumat then cancelled the contract on 22 September 2016. Ford applied to sustain his caveat. Coumat argued the caveat should lapse. The Court held that the application to sustain the caveat was granted and leave was reserved to the parties to apply for directions if the filing of another proceeding was contemplated in this outcome. Costs were to be paid on a 2B basis by Coumat to Ford. The Court held that the caveat sustain process is a summary process. It offers little time to provide affidavits to assist the Court’s purpose. Little scope is available for the Court to make determinations about facts when referring to conflicting affidavits. Until there is clarity about those facts legal issues about the availability of implied terms cannot properly be assessed. Hence the requirement in this kind of case that a caveat should remain unless clearly it cannot be sustained.

Orders