Forde v Li
[2016] NZHC 219
•18 February 2016
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV-2015-412-000100 [2016] NZHC 219
BETWEEN CAVAN JAMES FORDE AND MARTIN
CAVAN MCLEOD FORDE Appellants
AND
HU JIAN LI Respondent
Hearing: 15 December 2015 Appearances:
L A Andersen and M Taylor-Cyphers for Appellants
D P Robinson and C F Hodgson for RespondentJudgment:
18 February 2016
JUDGMENT OF GENDALL J
Introduction and background
[1] The appellants Cavan James Ford and Martin Cavan McLeod Forde (the vendors) appeal a decision of Judge Phillips in the District Court at Dunedin given on 11 August 2015.1 This appeal is opposed by the respondent Hugh Jian Li (the purchaser).
[2] Turning now to the background facts, the purchaser engaged Cao Wen Zhao as an agent to purchase a residential property at 9 Brunel Street, Mornington, Dunedin (the property). A private sale and purchase of the property was negotiated. By a written agreement dated 15 May 2013 on the REINZ/ADLS 9th Ed Agreement for Sale and Purchase of Real Estate Form (the Agreement) the vendors contracted to
sell and the purchaser to purchase the property.
1 Li v Forde [2015] NZDC 15375
FORDE v LI [2016] NZHC 219 [18 February 2016]
[3] The purchase price was $232,000 with a deposit of $23,200 payable by the purchaser by 17 May 2013. The balance of the purchase price was to be paid upon settlement date, being 14 June 2013.
[4] At all material times the vendors (it seems in their capacity as trustees of Opus Magnum Trust) were the registered proprietors of the property. The Certificate of Title to the property was “limited as to parcels” although this limitation was not noted on the Agreement which was unconditional.
[5] The deposit was paid on 17 May 2013. Subsequently, around 21 May 2013, a surveyor, Mr Pitts, made contact with the vendors and identified apparent issues with the boundary of the property and certain other lots, given that the title to the property was limited as to parcels.
[6] On 30 May 2013 the purchaser’s solicitor undertook a title search and also consulted the Dunedin City Council “Webmap”. The “Webmap” is an online service where title and boundaries information for properties in the city derived from the official record held by Land Information New Zealand is broadly overlaid on aerial photographs. It seems that this later enquiry suggested the majority of the dwelling on the property the purchaser had contracted to purchase may have been located outside what appeared to be the described boundaries of the title to the property.
[7] That day, 30 May 2013, the solicitor acting for the purchaser requisitioned the title to the property. She also required the vendors’ solicitor to hold the deposit of $23,200 as stakeholder. The facsimile from the purchaser’s solicitor which purported to requisition the title stated:
We hereby requisition the title. The house is not within the boundaries.
Attached to this facsimile were the “Webmap” aerial photographs of the property upon which the boundaries were overlaid.
[8] On 4 June 2013, the solicitor to the vendors responded advising, however, that:
I am in receipt of your title requisition 30 May last however I don’t believe the grounds recited give rise to a requisition your client is entitled to make in terms of 5.2(1) of the above contract.
My instructions are that my clients propose to take no steps in remedying the issue your client has raised be it a proper requisition or otherwise.
[9] In addition, under cover of that correspondence, the solicitor to the vendors forwarded to the purchaser’s solicitor the correspondence from the surveyor, Mr Pitts.
[10] Correspondence continued between the parties over what was claimed to be the defect in the title to the property and on 12 June 2013 the purchaser purported orally to cancel the contract represented by the Agreement. The following day the purchaser gave written notice of this purported cancellation and required return of the deposit.
[11] The vendors did not accept the cancellation and insisted upon settlement, ultimately issuing a Settlement Notice which the purchaser rejected. In disputing the validity of the Settlement Notice the solicitor to the purchaser again required repayment of the deposit.
[12] The purchase was not settled and proceedings were issued by the purchaser in the District Court for recovery of the deposit. The purchaser, as plaintiff in the District Court, argued that the vendors were obliged to give good title to the property in terms of the Agreement, that this included the dwelling house and they could not do so. The purchaser maintained the vendors did not have title to the improvements sold and thus the requisition made was justified. The purchaser did acknowledge the
10 working day limit, detailed in the requisitions clause 5 of the Agreement, may not strictly have been met but submitted that it did not apply to requisitions in relation to matters like this not discoverable from the title and that went to the root of the title to the property. A further argument advanced was that the requisition in any event was made within 10 working days of the plaintiffs’ solicitor receiving notice that the Agreement had been properly executed on behalf of the vendors.
[13] The vendors argued in turn that the requisition was not valid, first, because it was not made within 10 working days of the date of the Agreement and, secondly
and in any event, because it was not established the dwelling was outside the proper boundaries of the property. The vendors went on to say that, notwithstanding this, in any event, it was not significant. This was because the title to the property was limited as to parcels and therefore the purchaser should have been aware the dwelling in question was likely to be included within any new title issued when the purchaser had taken what were the proper steps in all the circumstances by having a new survey undertaken to remove the parcels limitation.
Decision in the District Court
[14] In the District Court, Judge Phillips found that there was a clear factual basis for the requisition made, and the purchaser’s concerns went right to the root of the title to the property.2
[15] As to the timing of the requisition, Judge Phillips found that the law was clear on defects which go to the root of title, that is, that such a defect falls outside the requisitions clause. Judge Phillips did not consider he had to make a finding on what date the Agreement actually became binding. The requisition was required to be made within a reasonable time from the date of discovery of the defect. The Judge therefore found that there was a valid requisition made either in terms of the Agreement or at common law.
[16] Judge Phillips also found that there was a clear misrepresentation by the vendors as to the actual boundaries of the property. Further his Honour held that under the Contractual Mistakes Act 1977, the parties were clearly mistaken as to the location of the boundaries. As a result, he concluded the vendors could not give title to the improvements that they had contracted to sell. And, as the agreed purchase price was inclusive of the improvements, there was a substantially unequal exchange in values. His Honour found for the purchaser under both the Contractual Remedies Act 1979 and the Contractual Mistakes Act 1977. The purchaser was also therefore
entitled to relief sought by way of those provisions.
2 At [27].
[17] In the District Court, judgment for the purchaser was given for the $23,200 deposit paid with interest on that sum up to the date of judgment which Judge Phillips awarded at 5 per cent per annum. His Honour did not, however, consider that there was a basis for the purchaser to be awarded general damages.
[18] Overall, the vendor appellants submit here that the key issue in the District Court judgment and on appeal is whether the purchaser was entitled to cancel the contract represented by the Agreement. The vendors’ position is that, first, the requisition was invalid as it required the removal of the limitation as to parcels, which was a matter not able to be requisitioned, and secondly, no grounds existed for the findings of misrepresentation or mistake here, and as a consequence, the purchaser could not have legitimately cancelled the Agreement. Therefore the purchaser has been in default under the Agreement throughout.
This appeal
[19] The vendors appeal the District Court decision on a number of bases, but the essential issues advanced by them can be summarised as follows:
(a) Judge Phillips erred in finding that there was a valid requisition here.
There was no evidence to say that the dwelling was outside the real boundaries of the property as those boundaries were not determined and could not be determined until the parcels limitation was removed.
(b)Judge Phillips erred in finding there was a misrepresentation by the vendors that the boundaries of the property sold differed from the occupational boundaries. There was no representation made and, in any event, ultimately the boundaries of the land sold were established to be within the occupational boundaries when the title with parcels limitation removed was finally issued. Consequently, the purchasers had no right to cancel the Agreement under s 7 of the Contractual Remedies Act 1979.
(c) There was no mistake here but in any event, Judge Phillips erred in failing to consider or apply the principles of s 7 of the Contractual
Mistakes Act 1977 to determine the appropriate remedy if there had been a contractual mistake.
[20] If their appeal is to succeed, the vendors also seek that judgment be entered in their favour on their counterclaim. The counterclaim sum sought is $30,739.69. This represents a $22,000 loss on the resale price achieved for the property plus interest, rates and resale conveyancing costs (which total in all $53,937.69) less the
$23,200 deposit which the vendors are still retaining. In addition, they seek an award of costs on the appeal and the District Court hearing.
[21] I agree here that the success of this appeal lies with the question of whether the Agreement was validly cancelled and this can be answered with recourse to the three principal issues alluded to by the vendors:
(a) Was there a valid requisition made by the purchaser, either contractual or at common law?
(b)Did the vendors make a misrepresentation that entitled the purchaser to cancel under s 7 of the Contractual Remedies Act 1979?
(c) Was there a common mistake?
[22] I will look at each of these questions in turn.
Was there a valid requisition?
[23] In his decision, Judge Phillips found that there was a valid requisition made under the Agreement. Clause 5 of the Agreement deals with requisitions. It provides:
5.1The vendor shall not be bound to point out the boundaries of the property except that on the sale of a vacant residential lot which is not limited as to parcels the vendor shall ensure that all boundary markers required by the Cadastral Survey Act 2002 and any related rules and regulations to identify the boundaries of the property are present in their correct positions at the settlement date.
5.2 (1) The purchaser is deemed to have accepted the vendor’s title
except as to objections or requisitions which the purchaser is
entitled to make and notice of which the purchaser serves on the vendor on or before the earlier of:
(a) the tenth working day after the date of this agreement; or
(b) the settlement date.
…
(3) If the vendor is unable or unwilling to remove or comply with any objection or requisition as to title, notice of which has been served on the vendor by the purchaser, then the following provisions will apply.
(a) The vendor shall notify the purchaser (“a vendor’s notice”) of such an inability or unwillingness on or before the fifth working day after the date of service of the purchaser’s notice.
(b) If the vendor does not give a vendor’s notice the vendor shall be deemed to have accepted the objection or requisition and it shall be a requirement of settlement that such objection or requisition shall be complied with before settlement.
(c) If the purchaser does not on or before the fifth working day after service of a vendor’s notice notify the vendor that the purchaser waives the objection or requisition, either the vendor or the purchaser may (notwithstanding any intermediate negotiations) by notice to the other, cancel this agreement.
(4) In the event of cancellation under subclause 5.2(3), the purchaser shall be entitled to the immediate return of the deposit and any other moneys paid under this agreement by the purchaser and neither party shall have any right or claim against the other arising from this agreement or its cancellation. In particular, the purchaser shall not be entitled to any interest or to the expense of investigating the title or to any compensation whatsoever.
Judge Phillips’ basis for the finding that there was a valid requisition made was essentially that the “defect” in question here went to the root of the title.
[24] On these matters, under cl 5.2 of the Agreement, where good title has been shown, the purchaser is bound and may not repudiate the bargain.3 However, subject to the purchaser’s pre-contractual knowledge, the purchaser is entitled to requisition
any properly requisitionable defect discovered in the title to the property which is not
3 Re Taylor [1910] 1 KB 562 (CA).
disclosed in the contractual description. A requisition is typically a demand that the vendor remove a defect from the title before settlement. If a purchaser, however, has knowledge of the defect at the time of contracting and knows that the defect cannot be removed by the vendor, then the purchaser is precluded from bringing a requisition.4
[25] Implicit in all of this is that, as a starting point, for a requisition to stand there must be a requisitionable defect in the title. The purported defect in this case was that the “house [was] not within the boundaries”. This was alleged on 30 May 2013 when the solicitor for the purchaser undertook a title search and consulted the Dunedin City Council Webmap.
[26] The title to the property was actually “limited as to parcels”. Titles limited as to parcels are a “relic” from the old system of deeds transfer. The Land Transfer (Compulsory Registration of Titles) Act 1924 made it compulsory for land to be brought under the Land Transfer Act. However, in many cases the boundaries of bits of the land in question were not surveyed or defined with sufficient accuracy to comply with the requirements of the Land Transfer Act.
[27] At the time, for titles where the position of land, its area and boundaries were insufficiently defined as to accuracy, Parliament had authorised certificates of title to be issued in the absence of a property survey, but with the qualification that they did not attract the normal guarantee as to the boundaries of the property. These titles were issued “limited as to parcels”.
[28] Such a limitation, however, did not make the title defective. Rather, it was a guaranteed title with a qualification. The qualification could be removed as provided for by s 207 of the Land Transfer Act 1952. This involved submitting an application to the Registrar for the issue of an ordinary title along with a properly prepared
survey plan and providing such other evidence as was necessary to satisfy the
4 Ellis v Rogers (1885) 29 ChD 661 (CA); Meehan v New Zealand Agricultural Co Ltd (1907) 26
NZLR 766; Walton Mountain Ltd v Apple New Zealand Ltd (2003) 5 NZCPR 241, (2003) 5 NZ ConvC 193,853 at [28].
Registrar that no part of the land was held in occupation adverse to the title of the proprietor.5
[29] As I have already noted, in the Dunedin City Council Webmap it was indicated that the boundary line of the property may have run through the property improvements (the dwelling). Why this occurred it seems relates to an issue with the original Deeds Plan 41. This had defined the title to the property (which is at
9 Brunel Street) as Part Lot 6 Deeds Plan 41. It also defined further titles down Brunel Street including the title to 5 Brunel Street (Lot 4). On Deeds Plan 41, although it is somewhat unclear, 5 Brunel Street appears to be described as having a frontage to Brunel Street of some 76 feet. This was in fact wrong. It should only have been 60 feet. The Computer Freehold Register also wrongly indicated that the
title to 5 Brunel Street (Lot 4 Deeds Plan 41) was a fully guaranteed title.6 And, to
compound issues, another property being described as Lot 5 on Deeds Plan 41, between Lots 4 and 6 (and thus adjacent to the property in question here), was also subdivided into four sections, each being represented (wrongly as it turned out later) as a guaranteed title free of any limitations. A right of way was also granted over this Lot 5 on Deeds Plan 41 and recorded on the respective tiles.
[30] The upshot of all this was that the indicated frontage to the nearby property at
5 Brunel Street (Lot 4 on Deeds Plan 41) of 76 feet pushed the apparent boundaries of Lots 5 and 6 out of kilter by 16 feet. This would have meant that the neighbouring right of way mentioned above would run straight through the dwelling on the subject property. In combination with the apparent fully guaranteed titles of Lots 4 and 5, and the limited to parcels title of the subject property, Lot 6, this might create real initial difficulties.
[31] Errors had clearly occurred however. In reality the original parcels limitation on Lot 4 (being 5 Brunel Street) should never have been removed. Mr John van Bolderen, the expert for the vendors, believed that the limitation as to parcels notation was inadvertently omitted when the paper title for Lot 4 was converted to an
electronic one. There was never a plan deposited in accordance with s 207 of the
5 Land Transfer Act 1952, s 207(1)(a)
Land Transfer Act to have the parcels limitation removed. It was shown in evidence that a historical search would have indicated this. That fact would clearly have raised alarm bells. On the face of the electronic title, however, it appeared to be a fully guaranteed title. (I leave on one side here any questions of a compensation claim being brought against the Crown under s 172 Land Transfer Act 1952 for this mistake.)
[32] Much was made of these errors and the perceived location problem with the northern boundary of the property. It is said now that they provided the impetus for the requisition and the consequent cancellation of the Agreement.
[33] Turning now to the law on requisitions, on aspects relevant here the position is well settled. In Sale of Land, McMorland, in his passage discussing requisitionable defects in title, says of limitations as to parcels:7
A limitation as to parcels, although entailing an absence of guarantee as to the area and boundaries of the land, is not a defect in the title where the whole of the land in the title is being sold; the purchaser cannot compel the vendor to pay the cost of a new survey. The onus is on the purchaser, if the purchaser so chooses, to have a survey done. Any discrepancies found may give rise to a claim for compensation, or, if it is found that the vendor lacks title to a sufficiently large part of the land sold, may give a right of cancellation. If only part of the land in a title limited as to parcels is being sold, the Registrar may require a new survey plan to be deposited, in which case it is the vendor’s obligation to provide and pay for the new survey.
[34] And, in an article entitled “The Requisitions Clause in Agreements for Sale
and Purchase” in Recent Law,8 Dr F M Brookfield states:
(2) Limitations as to parcels
A very large number of certificates of title issued under Part XII of the Land Transfer Act 1952 (or under the Land Transfer (Compulsory Registration of Titles) Act 1924) remain limited as to parcels and many of them will no doubt be so indefinitely. Do such limitations constitute a title defect to which a purchaser may object? There is no doubt that they do not, and that a memorial of parcels limitations simply warns the purchaser or other searcher that the area and boundaries of the land are not guaranteed under the Land Transfer Act…It is for the purchaser to satisfy himself, by survey if necessary, that the area and boundaries are correct. If they are not, there may then be a defect in title which (being undisclosed by the
7 D W McMorland Sale of Land (3rd ed, Cathcart Trust, Auckland, 2011) at [9.09(c)].
register) will afford a ground for objection which is outside the requisitions clause; or which, if only minor, will entitle the purchaser to compensation when completing the sale.
But parcels limitations in themselves constitute no title defect for which requisition may be made.
(Footnotes omitted)
[35] It would seem that the option available to the purchaser here was to have the property surveyed. Once the property was surveyed and the boundaries established then the purchaser could consider seeking a remedy if it was appropriate and so required. Whether and how far the dwellings were outside of the boundaries would determine the remedy, be it compensation or otherwise. After all, it was not until the boundaries were established that it could be known whether a remedy was even needed.
[36] Counsel for the purchaser attempted to get around this issue by arguing that the requisition was not in respect of the parcel of land, but rather the dwellings located on it. It was submitted that where the dwellings which the purchaser also contracted to purchase fall outside the boundary, a requisitionable defect arises.
[37] However, in my view, this begs the real question. It could not be known if the dwellings fell inside the true boundaries of the property because the final boundaries were not established and could not be established until the parcels limitation on the title was removed. The only way this could be achieved was in accordance with the s 207 process. Despite how it might have appeared from the Dunedin City Council Webmap and the title to Lot 4 in particular, no one could know categorically if the dwellings on the property fell within the ultimate legal boundary. An indication that a title is “limited as to parcels” provides notice that the title is not at that point guaranteed as to its boundaries. This is something that a purchaser should be made aware of before entering into an unconditional agreement to purchase land, and certainly an appropriate condition inserted into a purchase agreement requiring a purchaser to be satisfied as to title matters once a proper Land Transfer search is undertaken would meet the situation. But that did not occur here.
[38] I therefore find that there was no requisitionable defect in this case. Based on this ground advanced for the purchaser the purported cancellation of the Agreement by him must be seen as invalid.
Was the purchaser otherwise entitled to cancel the Agreement?
[39] On this question of whether or not there was some other proper ground for cancellation, Judge Phillips found grounds did exist both upon the basis of misrepresentation and mistake.
[40] On the issue of misrepresentation, Judge Phillips found that the vendors had induced the purchaser to enter into the Agreement by representing apparent boundaries which differed from what were said to be the “legal” boundaries of the property. As to this, s 7(3)(a) of the Contractual Remedies Act 1979 provides:
(3) Subject to this Act, but without prejudice to subsection (2), a party to a contract may cancel it if –
(a) he has been induced to enter into it by a misrepresentation, whether innocent or fraudulent, made by or on behalf of another party to that contract …
[41] Sub-section 4 places a further qualification on this by requiring:
(4) Where subsection (3)(a) or subsection (3)(b) or subsection (3)(c)
applies, a party may exercise the right to cancel if, and only if,—
(a) the parties have expressly or impliedly agreed that the truth of the representation or, as the case may require, the performance of the term is essential to him; or
(b) the effect of the misrepresentation or breach is, or, in the case of an anticipated breach, will be,—
(i) substantially to reduce the benefit of the contract to the cancelling party; or
(ii) substantially to increase the burden of the cancelling party under the contract; or
(iii) in relation to the cancelling party, to make the benefit or burden of the contract substantially different from that represented or contracted for.
[42] In my view, this point can be dealt with shortly. It seems to overlook that the legal boundaries actually post-survey proved to be confirmed almost precisely where the apparent boundaries were, a location which as I understand it had been readily accepted for decades by all involved with this property. In this case, the purchaser had entered into an unconditional contract to purchase the property. The purchaser did not choose to make the Agreement conditional (as he could have) for a short period on his being satisfied as to title aspects, which could have made a significant difference here. As already noted, the parcels limitation meant that the boundaries of the property were not guaranteed. It also meant that the legal boundaries of the property could not have been finally ascertained for all purposes until a proper survey was conducted, and the obligation to obtain this in the circumstances here rested with the purchaser.
[43] If a survey had been conducted and found that the dwelling was outside the legal boundaries then the purchaser would have had remedies available to him. However, this was not the final position. Despite what the DCC Webmap might have suggested, this was not determinative of the legal boundaries to the property and subsequent events proved the position the Webmap was advancing was awry. Clearly, it is s 207 of the Land Transfer Act which provides for the process of establishing the legal boundaries to a “limited as to parcels” title.
[44] On this ground, the present appeal starts and finishes with the fact that the boundaries were not determined. It was not determined at the time exactly where the dwelling was on the property. There was no telling at this stage whether the benefit or burden had been substantially reduced or increased.
[45] In the District Court Judge Phillips, as I see it, erred in finding there was a misrepresentation on the part of the vendors here that the boundaries of the property sold differed from the occupational boundaries. The learned Judge had concluded that the removal of the parcels limitation created “a different title to that which had been the subject of the Agreement”. Respectfully I disagree. That is not a proper conclusion as to the effect of the removal of the parcels limitation from a title. That removal did not create a new or a different title, but simply established the indefeasible boundaries of the title already in existence.
[46] Turning back to the Agreement for the purchase of the property, it was incumbent upon the purchaser in the circumstances here, if he wanted the parcels limitation removed from the title, to himself obtain a survey to do so. If it did in fact turn out that any dwellings were not within the final confirmed boundaries, then the purchaser may have been able to cancel the Agreement or to seek compensation. But, as it transpired finally, this proved not to be the case in any event.
[47] And, as I have concluded above, no misrepresentation occurred here as the legal boundaries to the property were confirmed to be within the occupational boundaries when the final title issued.
Contractual Mistakes Act
[48] The Contractual Mistakes Act 1977 does not provide a right to cancel a contract, only to seek relief. And, in his decision, Judge Phillips made the following finding:
[57] On the issue of the Contractual Mistakes Act 1977 on my findings of fact the parties were clearly mistaken as to the location of the boundaries of Lot 6. As a result the defendants could not give title to the improvements that they had contracted to sell. The agreed purchase price was inclusive of the value of the improvements. The plaintiff was therefore paying for assets that the defendants were unable to give them title to. The end position is that there was a substantial unequal exchange in values.
[49] Again, as I see it, the same issues arise as I have outlined above. There was no basis for Judge Phillips’ findings either that “there was a substantial part of the property being sold outside the boundaries” or that “the vendors could not give title to the improvements that they contracted to sell”. If, on the contrary, this had been the case then a remedy may well have been forthcoming. However, this did not prove to be the case here. The final legal boundaries to the property had not been confirmed at the time, and when they were, all the improvements, including the dwelling, were properly within the final title issued. Title to all those improvements would have passed to the purchaser from the outset and, had he completed the survey to remove the parcels limitation, which was for him to do if he so chose, this would have been confirmed.
Outcome
[50] For all the reasons outlined above, I therefore find in favour of the vendors here. There was no requisitionable defect and the purchaser did not have any grounds on which to cancel the contract represented by the Agreement. The appeal is allowed. The judgment in the District Court entered against the vendors is set aside.
[51] And, as I have noted at para [20] above, the vendors on this appeal have also sought that judgment be entered in their favour on their counterclaim for a net sum amounting to $30,739.69. In light of the whole history of this matter and the amounts involved, it is appropriate in my view to address this counterclaim now rather than simply refer this matter back to the District Court.
[52] That said, and given my finding that the purchaser was not entitled to cancel the Agreement and was in default in failing to settle the purchase, the vendors’
counterclaim succeeds. The counterclaim amount sought is made up as follows:
Loss on resale of the property $22,000.00 Interest on unpaid balance of purchase price of $208,800 at 15%
per annum from 14/06/13 to 30/05/14 (349 days)
$29,947.07
Rates on the property from 14/06/13 to 30/05/14 -
$1,450.62
Conveyancing costs on resale
$540
Total
$53,937.69
Less deposit paid and retained by vendors $23,200
$23,200
Defendant’s loss claimed
$30,737.69
[53] Although I heard little argument from the parties regarding these quantum amounts, in my view they are sustainable here at the levels sought.
[54] First, the $22,000 loss on resale representing the reduction in price on resale is appropriately claimed – see clause 10.4(3) of the Agreement. And there is no challenge by the purchaser to the resale figure of $210,000.
[55] As to interest on the unpaid $208,800 balance purchase monies, the default interest rate for late settlement specified in the Agreement is 15% per annum and clause 10.4(3)(a) requires the purchaser here to pay to the vendors interest at that rate on the unpaid balance purchase monies as sought. This amount for the default period in question represents the amount claimed $29,947.07 and is correct.
[56] In terms of clause 10.4(3)(c) of the Agreement, the claim for rates on the property as outgoings for the period from 14 June 2013 to settlement date on the resale is also properly made. The figure for rates of $1450.62 is in order.
[57] Lastly, the conveyancing costs on resale amounting to $540 are properly claimed here. This is based on clause 10.4(3)(b) of the Agreement and the fact that these are costs incurred by the vendors which they would not have needed to meet had the purchaser not been in default here.
[58] These amounts total $53,937.69 and I conclude they are properly claimed by the vendors. Taking into account the $23,200 deposit which the vendors have retained, their net loss of $30,737.69 here is made out.
[59] As noted at [50] above, the judgment in the District Court is now set aside. In its place, I now give judgment in favour of the vendor appellants against the purchaser respondent for the following:
(a) the net sum of $30,737.69 as outlined above;
(b) the deposit of $23,200 which is now forfeited to the vendors;
(c) costs on this appeal and also costs on the District Court proceeding itself, both calculated on a category 2B scale basis, together with disbursements as approved by the Registrar.
...................................................
Gendall J
Solicitors:
L A Anderson, Dunedin
Alistair D Paterson Lawyer, DunedinGallaway Cook Allan, Dunedin
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