Fraser v McHardy
[2018] NZHC 535
•27 March 2018
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIŌEA ROHE
CIV-2016-454-116
[2018] NZHC 535
IN THE MATTER of an agreement for sale and purchase UNDER
Part 33 of the High Court Rules
BETWEEN
WAYNE FRASER
Plaintiff
AND
GRAEME REX McHARDY AND IAN GEORGE McHARDY
Defendants
Hearing: 5 and 6 March 2018 Counsel:
G A Paine for Plaintiff
T G A Manktelow for Defendants
Judgment:
27 March 2018
JUDGMENT OF THOMAS J
Introduction
[1] The defendants, Graeme and Ian McHardy, are brothers who have farmed in partnership since the mid-1980s. They own several farm properties and, in 2015 and 2016, owned a block of land in Kaitawa Road, Pahiatua known as the Hill Block.
[2] The plaintiff, Wayne Fraser, is also a farmer in the area. He and his partner, Samantha Rossouw (Samantha) were interested in purchasing the Hill Block and had some discussions with Ian about that in 2015 and 2016. Wayne maintains he and Ian concluded a contract for the sale and purchase of the Hill Block which was partly in writing and partly oral and in the circumstances Graeme and Ian were bound by it.
FRASER v McHARDY [2018] NZHC 535 [27 March 2018]
[3] Following the defendants selling the Hill Block to a third party, Wayne commenced proceedings against the defendants, seeking specific performance of the alleged contract on the basis he had taken steps in part performance of that contract.
Background
[4] There is a large measure of agreement between the parties as to the events surrounding the alleged contract.
[5] Ian was aware of Wayne’s interest in purchasing the Hill Block from at least late 2015. Ian had told Wayne he expected the sale price to be around $440,000 which was slightly above rateable value. There may have been a discussion about the benefits of a private sale as opposed to using a real estate agent.
[6] Although the Hill Block was not formally listed with an estate agent, it was known in the district that the McHardys were interested in selling it. A number of prospective purchasers had been shown the Hill Block.
[7] In February 2016, Wayne and Samantha went to South Africa for a holiday. Samantha’s parents live in Cape Town. Samantha’s parents proposed to sell a rental property they owned in Cape Town and make the funds available to Wayne and Samantha to buy the Hill Block.
[8] Samantha and Wayne frequently dropped in on Ian and his wife Dianne for coffee and a chat. Wayne and Samantha say they did so before they left for South Africa and they confirmed their interest in buying the Hill Block, saying the funds would be coming from South Africa when the Cape Town property was sold. Samantha says, when in South Africa, she put together a budget and discussed it with her parents. They all agreed it was “a good idea” to buy the Hill Block for the
$440,000 she maintained had been offered. She says at that point Wayne sent a text to Dianne saying they wanted to purchase the Hill Block.
[9] Ian does not possess a cellphone. He says if any such text were sent, he was not advised of it.
[10] Ian’s son, Logan, and Dianne farmed a property in partnership and wanted to acquire land immediately adjacent to the home block of their operation. They had been leasing some land and wanted to buy it when it went to auction. Any such land would have been bought by Ian and Graeme and a sale of the Hill Block was one way of financing any such purchase. The auction was to take place on 4 March 2016. In early-2016 Ian met with his bank manager about financing a bid. He mentioned Wayne’s interest in the Hill Block and Ian’s bank manager told him he would need a signed contract and 10 per cent deposit if they intended to rely on a sale of the Hill Block to finance any purchase.
[11] Ian informed Wayne of what the bank manager said either before or after the auction date. In any event, no contract and deposit was forthcoming.
[12] In April 2016, the Cape Town property was placed on the market. Wayne and Samantha met with Perpetual Guardian to update their wills and form a trust for the purpose of purchasing the Hill Block.
[13] On 12 May 2016, another parcel of land adjacent to Logan’s home block was advertised with a closing date for tenders of 16 June 2016. This reintroduced some urgency on Ian’s part to progress a sale of the Hill Block.
[14] There is no dispute that Ian handed to Wayne a note (the Note) which read as follows:
Chattels
The purchase includes the Following chattels Woolsed and Shearing Plant $(1,000)
Water Pump ($400)
Agreed Price
$440,000-00
[15] At the same time, Ian handed Wayne copies of the certificates of title for the Hill Block (there being two titles) showing the proprietors as Graeme and Ian. Wayne maintains this took place on a date in May when he bumped into Ian on Mangahao
Road. Samantha supports this, saying Wayne showed her the documents when he returned home. Ian says he handed both documents to Wayne when Ian, Dianne, Wayne and Samantha met at Ian and Dianne’s house on 12 June 2016. He said this was a meeting which was arranged following discussions with Wayne as to whether he was still interested in buying the Hill Block. Ian says, in preparation for this meeting, he asked his lawyers to provide him with copies of the titles to the Hill Block.
[16] It probably makes no real difference whether the Note and copy certificates of title were handed by Ian to Wayne in May or June 2016. The weight of evidence supports this occurring in June 2016. In his affidavit dated 2 December 2016 in support of an application to caveat the titles to the Hill Block, Wayne says he negotiated the purchase of the Hill Block in early June 2016. On 9 June 2016, Ian’s lawyers emailed him, saying “Attached are the titles to the land as discussed”. The subject line of the email read, “Kaitawa Road, Pahiatua”. The Hill Block is on Kaitawa Road. It would be surprising if Ian happened to have a copy of the titles available when he “bumped into” Wayne on Mangahao Road in May.
[17] Ian says he gave Wayne the documents on 12 June so that Wayne could take them to his lawyer in order to draw up a formal contract between them. This is supported by the fact the closing date for tenders was 16 June. It is also supported by the fact that on 15 June 2016, Samantha contacted an online law firm to draw up an Agreement for Sale and Purchase of the Hill Block (the ASP).
[18] Ian says, while the purpose of the Note might have been to record the main terms, he considered there still had to be an agreement for sale and purchase and something he could “run past” his solicitor.
[19] Ian says he also made it plain to Wayne and Samantha that he would have to consult with Graeme about any sale and Graeme would have to agree, although he thought he would be likely to. Ian’s recollection of the meeting on 12 June was that Wayne was enthusiastic but made it clear money from Samantha’s parents was required to finance the purchase. Ian described Samantha as more cautious, saying it was difficult to get money out of South Africa and that her parents’ application for residency in New Zealand needed to be approved. Whilst acknowledging discussing
the difficulty in getting money out of South Africa, Samantha categorically denies any comment about her parents applying for residency in New Zealand, which she says has never been intended.
[20] On 19 June, Dianne replied to a text from Wayne and said, “How did you get on with hill block at solicitors”. Wayne replied, “everything in place sam said. waitng 4 trust. algood.”
[21] Dianne replied, “Cool any idea how long that will take”, to which Wayne responded, “2 weeks”.
[22] On 5 July 2016, Wayne and Samantha took the ASP to Ian at his house. 1 What was discussed is in some dispute but it is a fact that Ian did not sign the ASP and that he told Wayne and Samantha that Graeme’s signature would also be required.
[23] Around 6 July, Logan was approached by Ben Read, enquiring about the possibility of purchasing the Hill Block. Ian found out about this a few days later and on 10 July rang Mr Read, advised him he had received an offer and that, if Mr Read were interested, he had to make it worthwhile. On 17 July, Mr Read telephoned Ian, offering to buy the Hill Block for $520,000 cash with no conditions. Ian says he told Mr Read he would give Wayne the opportunity to match the offer.
[24] On 17 July, at about 8.00 pm, Wayne texted Dianne saying, “hay di. house in capetown sold cash offer. and accepted. that’s grate news aye.”
[25]Ian says he was not made aware of that text until the following day, 18 July.
[26] On 18 July, Ian and Logan went to see Wayne and Samantha, explained the cash offer and invited Wayne to match it. Ian describes the meeting as fairly friendly, maintaining Wayne said words to the effect, “I knew that as soon as we were interested in this property this would happen”. Ian believed Samantha remained concerned about getting money out of South Africa and he left them to consider their position.
1 The named purchasers in the ASP were Wayne and Samantha, as trustees of the Sway’n Trust. In light of the evidence in support of the alleged contract, Wayne is the sole plaintiff.
[27] Wayne texted Logan on 20 July enquiring about the possibility of exchanging Wayne’s lease of land as part payment for the purchase of the Hill Block, saying:
i would if I could do a deal if possible
[28] This followed enquiries about the rateable value of the Hill Block, Samantha and Wayne wanting that information to discuss with Samantha’s parents the possibility of increasing their offer.
[29] Graeme McHardy had gone away on 5 July 2016, leaving before the ASP was presented to Ian, and did not return until 2 August 2016. He did not have a mobile telephone and was difficult to get hold of. Ian made contact with him on 21 July after Wayne had advised him on 20 July he could not match Mr Read’s price. Graeme and Ian decided to accept Mr Read’s offer.
[30] On 22 July 2016, Wayne personally delivered to Ian a letter dated 21 July from Wayne’s lawyer, referring to the ASP and saying:
I stress that I have advised the prospective purchasers that as they have altered their position both personally and especially financially, that their agreement with you may well be enforceable.
If you are presently contemplating avoiding the transaction I urge you to reconsider your position.
My instructing clients are able to settle on the date provided in the Agreement.
[31] On 2 August 2016, Graeme and Ian formally accepted Mr Read’s offer, the agreement being conditional on Wayne’s claim being determined to their satisfaction by 22 November. Such a condition reflected the fact that Wayne’s lawyer had put the McHardys on notice of Wayne’s potential claim to the Hill Block. Wayne and Ian recorded their satisfaction with the condition and settlement of the sale to Mr Read took place on 1 December 2016.
[32] Wayne and Samantha say the Cape Town property was sold for less than they considered it was worth but it was sold to ensure the funds would be available in time to complete their purchase of the Hill Block in October 2016.
[33] Wayne continued to harbour a suspicion that Ian and Graeme had signed the ASP but then changed their minds on receiving a better offer. This resulted in some curious exchanges between lawyers when Wayne’s solicitor demanded the return of the original ASP and the McHardys’ solicitor refused. In any event, the original of the ASP was produced to the Court. It had not been signed by either Graeme or Ian.
Issues
[34] There is no doubt Ian and Graeme McHardy owned the Hill Block and Wayne was interested in buying it. Wayne and Ian had discussions about the potential sale and purchase. Ian provided the Note and copies of the certificates of title to Wayne. Wayne presented the ASP signed by him and Samantha to Ian but neither Ian nor Graeme signed it. The McHardys sold the Hill Block to a third party.
[35]The issues for me to determine are:
(a)Was there a contract for the sale of the Hill Block to Wayne?
(b)If so, did Wayne part perform the contract so that it would be unconscionable for the McHardys to rely on the Property Law Act 2007 requirements for enforceability of a contract to sell land?
Was there a contract for the sale of the Hill Block?
[36] It is not in dispute that the requirements for enforceability of a contract for the sale of land are not met. There is no contract or written record signed by the defendants recording their agreement to sell the Hill Block to the plaintiff.2 This is not necessarily fatal to the plaintiff’s case because the doctrine of part performance is not affected by the requirements for contracts for the sale of land.3
[37] Before any question of part performance can be addressed, the plaintiff must first establish that there was a contract between him and the defendants for the sale and purchase of the Hill Block. That requires consideration of the basic principles of
2 Property Law Act 2007, ss 24–27.
3 Section 26.
contract formation. The principles relevant to this case are offer and acceptance, certainty, and intention to create legal relations.
Offer and acceptance; certainty
[38] Whether there is a contract depends on the presence of an offer capable of acceptance, actual acceptance, and certainty as to terms – particularly, in this case, consideration.4
[39] Wayne says when Ian handed the Note and certificates of title to him in May 2016, that constituted an offer to sell the Hill Block. He says he accepted that offer on the spot. Both Wayne and Samantha maintain there was then an unconditional contract. That had been preceded by a text in March 2016 from Samantha to Dianne confirming that they wanted the Hill Block. Furthermore, Ian knew settlement could take place only after the Cape Town property had been sold. Wayne then says Ian told him in June, when Ian was looking to buy another property, that his bank wanted something to show the Hill Block was sold in order to obtain finance. Wayne therefore instructed his lawyers to draw up the ASP reflecting what he said were terms which had been discussed and agreed with Ian. Those terms were a five per cent deposit, a price of $440,000 including GST and settlement on 31 October 2016 with a 30-day extension if there were a delay in the sale of the Cape Town property. Those conditions were indeed reflected in the ASP.
[40] The additional terms in the ASP to which Wayne did not refer were that the sale was conditional on the sale of the Cape Town property, the condition being for the sole benefit of the purchasers, and that the deposit was to be refunded to the purchasers if the sale did not proceed for any reason.
[41] The ASP is clear evidence that there was no concluded contract between the parties. The ASP did not reflect the bargain Wayne maintains had been concluded.
[42] Ian says he was concerned the ASP was conditional on the sale of the Cape Town property, realising there was then every possibility the sale of the Hill Block
4 See TA Dellaca Ltd v PDL Industries Ltd [1992] 3 NZLR 88 (HC) at 97.
would not proceed. The condition was somewhat strangely worded, providing that the ASP was conditional on the purchasers obtaining an unconditional agreement for the sale of Samantha’s father’s property in South Africa. It is fair to say most lawyers acting for a vendor would be concerned about a condition expressed in this way.
[43]There was then the unusual further term of sale which read:
Deposit should be refunded if the agreement does not proceed.
[44] When asked about this clause, Wayne explained he wanted to establish that, if anything went wrong, the deposit would be returned to him, even if he were the party in default. There was no evidence such a condition had been discussed and agreed with Ian. Although Ian was not asked about it, given his reservations about any conditional sale, it is fair to infer such a condition would not have been acceptable. It was commercially unrealistic. The fact any sale of the Hill Block was primarily in order to finance another land purchase adds weight to the unlikelihood that Ian would have agreed any sale conditions which did not provide certainty.
[45] The ASP is also confirmation there was no agreement as to essential terms. Ian says he had never agreed a five per cent deposit. When giving evidence, Wayne said a five per cent deposit had been discussed and agreed with Ian. This was the first time the defendants were aware of this contention, it not having been referred to in Wayne’s brief of evidence.
[46]Ian also says he was concerned the ASP specified the purchase price of
$440,000 as GST inclusive. Samantha, an accountancy technician, says she discussed GST with Ian and told him the sale would be zero rated for GST purposes if both the vendor and purchaser were registered for GST. She says the trust she and Wayne formed on 30 June 2016 was registered that day for GST. She concedes that, if the transaction were not zero rated, then the terms of the ASP would mean the McHardys would have to pay the GST. While sch 2 of the ASP, providing GST information, was partially completed, it was not fully completed. This was an oversight, in Samantha’s evidence. The import of the GST inclusive purchase price, however, would have meant that, if the IRD did not accept the transaction was zero rated, then the liability for paying GST would have fallen on the McHardys. In contrast, the agreement for
sale and purchase with Mr Read provided for the purchase price being “plus GST (if any)” and sch 2 was fully completed.
[47] In Mr Paine’s submission, GST was a red herring. It was Ian who had specified the agreed purchase price in the Note and, if for any reason the transaction was not zero-rated, then that was his lookout.
[48] The point, however, is that the lack of reference to GST on the Note is further evidence of a lack of certainty and that Ian did not intend to create legal relations (discussed further below). It defies credibility that Ian, who has bought and sold a number of farm properties, would have agreed a GST inclusive price.
[49] For these reasons, I am not satisfied, even if there had been offer and acceptance at the time Ian handed Wayne the Note and certificates of title, that the nature and extent of the obligations were sufficiently certain so as to create a binding contract.
Was there an intention to create legal relations?
[50] Even if terms were agreed, there can be no contract unless the parties intended their agreement have binding legal effect. If there was no intention, there was no contract.5 Whether there was the necessary intention is determined by an examination of the facts.6
[51] Wayne contends there was such intention. Graeme and Ian say there was not. Having considered the evidence objectively, I am satisfied there was no intention to create legal relations. My reasons are set out in the following paragraphs.
[52] On Wayne’s own evidence, including his affidavit of 2 December 2016, any contract was not formed until early June 2016. He therefore has to accept that much of the evidence to which he refers was merely discussion about and preparation for a
5 Laws of New Zealand Contract (online ed) at [86].
6 Fleming v Beevers [1994] 1 NZLR 385 (CA) at [389]–[390]; and Mabon v Conference of the Methodist Church of New Zealand [1998] 3 NZLR 513 (CA) at [522]–[523].
potential contract. This includes the text which Wayne says he sent from South Africa and the fact the Cape Town property was put on the market in April 2016.
[53] Ian was the defendant who had all the dealings with Wayne about the prospective sale of the Hill Block. Wayne and Graeme had never discussed it. The Hill Block was, however, owned jointly by Ian and Graeme and could not be sold without the agreement of both. Ian and Graeme both say, while Ian was the one who carried out any negotiations, any sale or purchase of property required them both to agree. Graeme knew nothing of Ian’s discussions with Wayne. He considered Ian free to negotiate any deal but Ian could not finalise anything without Graeme’s agreement. Graeme says he did not authorise Ian to commit him to a sale with Wayne or anybody else.
[54] Ian considered it Wayne’s responsibility as the purchaser to provide him with a formal agreement for sale and purchase which he would take to his lawyer and discuss with Graeme.
[55] On 19 June, Dianne texted Wayne asking how he had got on with his solicitor about the Hill Block. That was clearly a question about an agreement for sale and purchase on the Hill Block. I accept that shows Ian and/or Dianne were interested in the potential sale and purchase progressing, notwithstanding the unsuccessful tender which closed on 16 June. It is possible to interpret that text message in different ways but, in the context, I prefer the interpretation that Ian remained interested in a potential sale, the proposed conditions of which would become apparent once Wayne produced a formal offer. As Ian says, at that stage he would finally have something concrete from Wayne which he could progress.
[56] Wayne knew the Hill Block was jointly owned. He had known that for some time, as was plain from his evidence. In any event, it was evident from the face of the copies of certificates of title which were handed to Wayne at the same time as the Note. Whether that occurred in May or June 2016 is immaterial. The Note was unsigned. The certificates of title clearly showed joint ownership. From this fact alone, it is clear in my assessment that Ian did not intend to create legal relations and Wayne must have known that.
[57] There was some suggestion that Ian had ostensible authority to enter into an agreement on behalf of the Partnership. Ian and Graeme do not have a written partnership agreement and their evidence was the business of the partnership is farming.
[58] In Mr Paine’s submission, because Ian and Graeme’s partnership had on previous occasions bought and sold farmland, in agreeing to sell the Hill Block to Wayne, Ian was carrying on in the usual way business of the kind carried on by the partnership and therefore could bind the partnership.7
[59] The case of Kennedy v Malcolm Bros concerned two brothers in a farming partnership where a written contract to buy adjoining farmland was signed by one but not both.8 In the Supreme Court it was held that, although in the ordinary circumstances the purchase of farmland would not come within the ordinary course of the business of a farming partnership, on the facts both partners contemplated the purchase of the land and were both present during negotiations. The case can be distinguished on that basis.
[60] The fact that a partnership might also at times buy and sell land does not alter what is in the usual way business of the kind carried on by the partnership.
[61] Wayne conceded in cross-examination that a transaction such as the sale of the Hill Block could not be considered within the ordinary course of dealings of a partnership and that he knew Ian would have to consult Graeme. He believed Ian had done so.
[62] In any event, the Hill Block was registered as jointly owned, Wayne knew that and the agreement of both owners was required for there to be a contract (in the absence of proof of agent authority).9
7 Partnership Act 1908, s 8.
8 Kennedy v Malcolm Bros (1909) 28 NZLR 457 (SC).
9 DW McMorland Sale of Land (3rd ed, Cathcart Trust, Auckland, 2011); Martinez v Rowland [1983] 1 QdR 496; Burt v Henry (2007) 8 NZCPR 573 (HC); and WT Trustee Co Ltd v Cato [2014] NZHC 994.
[63] Wayne seemed to advance an alternative basis for a concluded contract, being the verbal acceptance of the ASP by Ian. However, it is not in dispute that Ian did not sign the ASP on 5 July when Wayne and Samantha presented it to him. Ian says he told them he could not sign the ASP, not only because he needed to consult with his lawyer, but also because he needed to discuss the matter with Graeme. Wayne maintains Ian simply said he needed to obtain Graeme’s signature and he understood that to mean Ian had discussed and agreed the sale with Graeme beforehand.
[64] The fact is that neither Ian nor Graeme signed the ASP. That is a clear indication that they did not accept the terms of the ASP.
[65] In any event, I have my doubts as to whether Wayne himself in fact intended to create legal relations. Wayne is adamant there was a contract with the defendants committing them to sell the Hill Block to him. I am not convinced, however, that Wayne considered himself committed to buy the Hill Block in the absence of a formal contract.
[66] I say that for two reasons. First, there is no dispute that Ian had consistently told Wayne from March 2016 and again around May 2016 that he required a signed contract and 10 per cent deposit. That may have been couched in terms of what the McHardys’ bank manager had said but nevertheless, Wayne knew that was the McHardys’ requirement. He also knew the bank manager had said that in the context of advancing funds to the McHardys to enable them to purchase another property. He knew that the incentive for the McHardys to sell the Hill Block was for them to purchase another property. In those circumstances, his failure to present them with a signed ASP and deposit before 5 July 2017 in circumstances where he maintains there was a binding contract between them is inexplicable.
[67] Furthermore, even if there were an agreement as to terms of sale, Wayne also knew that a deposit needed to be paid. Whether that was to be five or 10 per cent is addressed above. The fact, however, is no deposit was ever paid. Even when the ASP was delivered to Ian on 5 July 2016, it was not accompanied by a cheque for the deposit.
Common and customary method of dealing
[68] Another relevant consideration is the common and customary method of selling and purchasing property in New Zealand. In cross-examination, Wayne reluctantly agreed the ASP was needed to provide certainty and to contain all the terms to govern the transaction. Wayne has purchased two properties himself and entered into a written agreement for sale and purchase in respect of both of them. He also agreed in cross-examination that the intention was to follow the normal process.
[69] The Court of Appeal in Carruthers v Whitaker allowed an appeal against an order for specific performance of an agreement for sale and purchase which had been executed by the purchasers but not the defendant vendor.10 The Court of Appeal cited with approval the comments in the English case of Eccles v Bryant and the following remarks of Lord Greene MR:11
When parties are proposing to enter into a contract, the manner in which the contract is to be created so as to bind them must be gathered from the intentions of the parties express or implied. In such a contract as this, there is a well-known, common and customary method of dealing; namely, by exchange, and anyone who contemplates that method of dealing cannot contemplate the coming into existence of a binding contract before the exchange takes place.
… When you are dealing with contracts for the sale of land, it is of the greatest importance to the vendor that he should have a document signed by the purchaser, and to the purchaser that he should have a document signed by the vendor. It is of the greatest importance that there should be no dispute whether a contract had or had not been made and that there should be no dispute as to the terms of it.
[70] Although the facts of Carruthers were a little different as both parties had consulted their solicitors about the terms of an agreement, it is not in dispute in this case that Wayne presented Ian with the ASP. There can be only one inference from that and that is Wayne intended the terms of the sale and purchase of the Hill Block to be recorded in a sale and purchase agreement as is the custom in New Zealand. By this stage (5 July), there was no impending auction or tender in which Ian was involved which might have meant the agreement was required for bank financing. The only inference which can be drawn is as stated.
10 Carruthers v Whitaker [1975] 2 NZLR 667 (CA).
11 Eccles v Bryant [1948] Ch 93 (CA) at 99–100.
[71] For these reasons, I am not satisfied there was certainty of terms or an intention to create legal relations. I therefore conclude there was no contract between the parties for the sale and purchase of the Hill Block.
Part performance and specific performance
[72] Given my above conclusion, I need address the issue of part performance only briefly.
[73] The part performance on which Wayne relies is the sale of the Cape Town property “at a lesser value than what was sought” to enable the contract to be declared unconditional. The Cape Town property was put on the market in April 2016, before Wayne maintains any contract for the sale and purchase of the Hill Block was formed.
[74] Even if there had been a contract between the parties, there is an obvious difficulty with the claimed part performance in that it relies on the sale of the property owned by Samantha’s parents in Cape Town. Even if it could be argued that Wayne (and Samantha) were to be the beneficiaries of that sale and received less than they would otherwise have done, there was no evidence the sale of the Cape Town property was under value.
[75] This is the immediate difficulty with the claim even before turning to other requirements for part performance, specifically the question of whether any sale of the Cape Town property was merely preparatory and ancillary as opposed to in part performance of an obligation under the contract.12
Result
[76]For the reasons given, the plaintiff’s claim is dismissed.
[77] There would seem no reason why costs on a 2B basis should not be awarded to the defendants. If the parties cannot agree, the defendants are to file and serve a
12 TA Dellaca Ltd, above n 4, at 109–110; Mahoe Buildings Ltd v Fair Investments Ltd [1994] 1 NZLR 281 (CA); and Strack & Strack v Hatchi Sydney Corp Pty Ltd (1998) 10 NZCPR 773 (HC).
memorandum on costs within 28 days of this decision, with any response from the plaintiff 14 days thereafter. Costs will be decided on the papers.
Thomas J
Solicitors:
Brittens, Palmerston North for Plaintiff
Innes Dean Tararua Law, Palmerston North for Defendants
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