Khalesi v Lane

[2023] NZHC 2701

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2017

[2023] NZHC 2701

UNDER

Section 24 of the Property Law Act 2007

BETWEEN

SAM KHALESI and SHAHIN KHAYAMI

Plaintiffs

AND

LESLIE PHILLIP LANE and FAST SPARK DEVELOPMENTS LIMITED

Defendants

Hearing:	6, 7 March 2023
Appearances:	A R Gilchrist for the Plaintiffs K Narayanan for the Defendants
Judgment:	27 September 2023

JUDGMENT OF HARVEY J

This judgment is delivered by me on 27 September 2023 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Counsel/Solicitors:           Churton Hart & Divers Limited, Auckland

Martelli McKegg, Auckland

Counsel:  Andrew Gilchrist, Barrister, Auckland

KHALESI v LANE [2023] NZHC 2701 [27 September 2023]

Introduction

[1]    Sam Khalesi and Shahin Khayami claim that they entered into an agreement to purchase land at 59 and 59A Ernie Pinches Street, Mount Roskill from Leslie Lane and Fast Spark Developments Limited. The plaintiffs say that the terms of the contract were agreed between Mr Khayami and Mr Lane at a meeting held on 30 March 2021. The plaintiffs further say that the agreement was initially oral and had been partly performed before being reduced to writing. Even so, the plaintiffs accept that their proposed agreement was never signed by the defendants. That said, the plaintiffs say that on 1 April 2021, Mr Lane sent a text to Mr Khayami which said “I just found out my lawyers are gone for the weekend. Agreement looks to me okay. But have to sign it at the lawyers.” The plaintiffs point out that the agreement had never been subject to solicitor’s approval.

[2]    According to the plaintiffs, there was part performance of the agreement by the transfer of 88,000 Bartercard dollars from Mr Khayami’s account to the defendants and 12,000 Bartercard dollars from his wife’s account to the defendants. The plaintiffs now allege that Mr Lane, initially agreeing to sell, due to a change of circumstances, has changed his mind and refuses to conclude the agreement. They now seek specific performance of the agreement they say exists between themselves and the defendants.

[3]    Mr Lane denies that the defendants entered into an oral agreement for the purchase of the property. He says that no agreement had been concluded. Instead,  Mr Lane says that, having rejected the plaintiffs’ proposal, he considered the matter at an end. Accordingly, he says he was surprised to learn that the plaintiffs had lodged caveats over the properties. In order to avoid costly and protracted litigation, Mr Lane says the defendants then sought to negotiate a solution with the plaintiffs. Ultimately, that failed. Mr Lane asserts that the parties were still in negotiations when the plaintiffs commenced these proceedings.

Issues

[4]    The parties have agreed, as recorded in the minute of Associate Judge Andrew (as he then was) dated 18 February 2022, that the relevant issues are:

(a)Was there a concluded oral agreement for sale and purchase of land between the plaintiffs and the defendants?

(b)If so, was that concluded oral agreement partly performed, such that there is a binding, enforceable contract between the plaintiffs and the defendants?

(c)If the plaintiffs can establish (a) and (b) above, are they entitled to an order for specific performance, or alternatively, damages?

[5]    Mr Gilchrist also raised the issue of the admissibility of parts of the defendants’ evidence. This was opposed by Ms Narayan. This matter is also considered.

Procedural history

[6]    The plaintiffs filed and served their statement of claim on 12 October 2021. The defendants filed their statement of defence on 9 December 2021. On 21 January 2022, the plaintiffs’ counsel filed a memorandum per r 7.3(2), High Court Rules 2016. Following that, on 28 January 2022, the defendants’ counsel did the same.

[7]    Then on 4 May 2022, counsel filed a joint memorandum seeking, in the context of discovery from a non-party, six weeks to enable that to occur. On 29 June 2022, a further joint memorandum of counsel was filed seeking adjournment of a case management conference. On 27 July 2022, a further joint memorandum regarding discovery was filed which confirmed that the defendants were to file an affidavit of documents within ten working days. Following that, on 3 August 2022, a notice of change of representation was filed by the defendants.

[8]    On 11 November 2022, a joint memorandum of counsel was filed regarding expert evidence and a request that evidence filed in separate proceedings between the same parties under CIV-2021-404-2015 to sustain a caveat on the land should be available for use in this proceeding.

[9]    On 24 February 2023, the plaintiffs’ counsel filed a memorandum per r 9.11 concerning material in Mr Lane’s affidavit and brief of evidence as to its admissibility.

Should part of the defendants’ evidence be excluded?

Plaintiffs’ submissions

[10]   Mr Gilchrist submitted that the passages complained off should not be considered as they were communications covered by s 57 of the Evidence Act 2006. He submitted that the material was part of the dialogue between the parties who were attempting to settle the issues between them and at the outset had been marked “without prejudice” by both Mr Khalesi and Mr Lane. Counsel contended that the presence of the documents in the related caveat proceeding was immaterial as objection has also been made to them there.

Defendants’ submissions

[11]   Ms Narayan rejected these arguments and submitted that the evidence was entirely relevant and should be admitted because the plaintiffs had waived any right of objection when they previously consented to it being included.

Legal principles

[12]Section 57 of the Evidence Act 2006 provides:

57 Privilege for settlement negotiations, mediation, or plea discussions

(1)  A person who is a party to, or a mediator in, a dispute of a kind for which relief may be given in a civil proceeding has a privilege in respect of any communication between that person and any other person who is a party to the dispute if the communication—

(a)  was intended to be confidential; and

(b)   was made in connection with an attempt to settle or mediate the dispute between the persons.

(2)  A person who is a party to a dispute of a kind for which relief may be given in a civil proceeding has a privilege in respect of a confidential document that the person has prepared, or caused to be prepared, in connection with an attempt to mediate the dispute or to negotiate a settlement of the dispute.

(2A) A person who is a party to a criminal proceeding has a privilege in respect of any communication or document made or prepared in connection with plea discussions in the proceeding.

(2B) However, the court may order the disclosure of the whole or any part of a communication or document privileged under subsection (2A) if the court considers that—

(a)    the disclosure is necessary for a subsequent prosecution for perjury; or

(b)   the disclosure is necessary to clarify the terms of an agreement reached, if the terms are later disputed or are ambiguous; or

(c)   after due consideration of the importance of the privilege and of the rights of a defendant in a criminal proceeding, it would be contrary to justice not to disclose the communication or document or part of it.

(3)  This section does not apply to—

(a)  the terms of an agreement settling the dispute; or

(b)  evidence necessary to prove the existence of such an agreement in a proceeding in which the conclusion of such an agreement is in issue; or

(c)   the use in a proceeding, solely for the purposes of an award of costs, of a written offer that—

(i)   is expressly stated to be without prejudice except as to costs; and

(ii)  relates to an issue in the proceeding; or

(d)  the use in a proceeding of a communication or document made or prepared in connection with any settlement negotiations or mediation if the court considers that, in the interests of justice, the need for the communication or document to be disclosed in the proceeding outweighs the need for the privilege, taking into account the particular nature and benefit of the settlement negotiations or mediation.

[13]   This section sets out the basis upon which communications are privileged (subsections 1 and 2), and the exceptions/powers of the Court to admit the evidence regardless.

[14]   The application of the rule is not dependent on the use of the phrase “without prejudice”.1 Whether communications are protected as being “without prejudice” depends on the intention of the parties which may be inferred where not expressly stated.2 The Court takes an objective view of what formed part of the settlement

1      Rush & Tompkins Ltd v Greater London Council [1988] 3 All ER 737 (HL), cited in Westgate Transport v Methanex NZ (2000) 14 PRNZ 81 (HC) at [20] and Minister of Education v Reidy McKenzie Ltd [2015] NZCCCLR 18 at [38]..

2      Rush & Tompkins Ltd v Greater London Council, above n 1.

negotiations or was reasonably incidental thereto rather than the subjective expectations of the parties.3 In respect of the s 57(1)(a) requirement that the particular communication was intended to be confidential, the Court in Westgate Transport Ltd v Methanex New Zealand Ltd held that the parties’ objective intention must be discerned from the terms and circumstances of the communication.4 Further, the use of the word “dispute” is not a term of art and not intended to be exclusive. The existence of “negotiations” or “difference” suffices.5

[15]   The policy basis for the without prejudice rule is to encourage litigants to settle their differences rather than litigate, and not be discouraged or less than frank due to the risk of negotiation material being put before the Court.6 Accordingly “[t]he rule applies to exclude all negotiations genuinely aimed at settlement.7 A second policy rationale was stated in Morgan v Whanganui College Board of Trustees: to recognise the sanctity of the parties’ agreement to communicate in the expectation of absolute confidentiality and protection.8

Discussion

[16]   I accept the argument that the evidence is part of the privileged communications between the parties. At that point, the parties appear to have been genuine in their approach to attempt to settle the issues that were between them. Accordingly, and notwithstanding the waiver arguments of Ms Narayan, these communications should be excluded. In any event, I do not consider they would have any significant bearing on the question of whether an oral contract was concluded at the meeting on 30 March 2021.

3      Minister of Education v Reidy McKenzie Ltd, above n 1, citing Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285 at 292 and Waerenga Forest Partnership v P F Olsen & Co Ltd (1999) 12 PRNZ 561 at 565–566.

4      Westgate Transport v Methanex, above n 1, at [25] and see Minister of Education v Reidy McKenzie Ltd, above n 1, at [42].

5      Morgan v Whanganui College Board of Trustees [2014] 3 NZLR 713 (CA).

6      Blakesfield Ltd v Foote (No 2) [2016] NZAR 1112.

7 At [16].

8      Morgan v Whanganui College Board of Trustees, above n 5.

Did the parties conclude an oral agreement for sale and purchase of land?

Plaintiffs’ submissions

[17]   Mr Gilchrist submitted that s 24 of the Property Law Act 2007 is relevant, along with s 26. The latter provides that nothing in the section affects the operation of the law relating to part performance. Counsel emphasised that this is very similar to its predecessor provision, s 2 of the Contracts Enforcement Act 1956. Accordingly, Mr Gilchrist contended that the present claim is as a purchaser of land pursuant to a partly performed concluded oral contract.

[18]   Counsel argued that it is well settled that the doctrine of part performance is an exception to the  requirement  that  a  contract  for  the  sale  of  land,  as  set  out  in T A Dellaca Ltd v PDL Industries Ltd.9 Counsel submitted that the three essential requirements are:

(a)a sufficient oral agreement that would be enforceable but for the Act;

(b)part performance of the oral agreement must have occurred which –

(i)amounts to a step in the performance of a contractual obligation or the exercise of a contractual right under the oral agreement; and

(ii)when viewed independently of the oral contract was, on the balance of probabilities, done on the basis that a contract relating to the land and such as that alleged was in existence;

(c)in the circumstances in which that part performance occurred now makes it unconscionable (fraudulent in equity) for the defendants to rely on the legislation.

[19]   Mr Gilchrist pointed out that these principles have been affirmed by the Court of Appeal in several cases.10 Moreover, according to counsel, in Welsh v Gatchell this

9      T A Dellaca Ltd v PDL Industries Ltd [1992] 3 NZLR 88.

10     Marvo Buildings Ltd v Fair Investments Ltd [1994] 1 NZLR 281; and Fleming v Beevers [1994] 1 NZLR 385.

Court held that payment of the deposit by a purchaser, along with other actions, were steps in the performance of a contract confirming it existed.11 The Court concluded that conduct constituted a part performance that occurred with the vendor’s knowledge such that it would now be unconscionable to permit the vendor to avoid the contract in reliance on the legislation. That case, like the present, according to counsel, was where there was an unsigned written agreement that had been preceded by an oral agreement.

[20]   Mr Khayami set out in his first affidavit at paragraph 12, the terms that were reached between the plaintiffs and the defendants. The parties would be the defendants as vendors and the plaintiffs as purchasers for the property at 59 and 59A Ernie Pinches Street, Mt Roskill with the sale price being $1,550,000 including GST. The deposit would be 100,000 Bartercard dollars with the balance of the price met on settlement date by 250,000 Bartercard dollars. The remaining balance of $1,200,000 would be in cash. The settlement would be 45 days from the date that the agreement became unconditional. The agreement was conditional on the plaintiffs being satisfied following due diligence with in three working days and with the ability of the purchaser to give notice in writing to terminate the agreement if it was not satisfied with any aspect of its due diligence.

[21]   Counsel submitted that the agreement was reduced to writing but was not signed by the defendants. The defendants acknowledge receipt of the written agreement. As foreshadowed, on 1 April 2021, Mr Lane text to say “I just found out my lawyers are gone for the weekend. The agreement looks to me okay. But have sign it at the lawyer.”

[22]   Mr Gilchrist contended that Mr Khayami arranged for transfer of 88,000 Bartercard trade dollars from his account to the defendants and 12,000 from his wife’s account in satisfaction of the deposit requirement. In any event, Mr Gilchrist underscored that at no time did the plaintiffs given notice that the due diligence clause had not been satisfied. As a result, Mr Gilchrist argued that there was now a binding oral agreement for sale and purchase effective from 8 April 2021. The plaintiffs

11     Welsh v Gatchell [2009] 1 NZLR 241 (HC).

therefore submitted that this conduct establishes a sufficient oral agreement that had been enforceable, but for the Act, which was partly performed by the payment of the deposit. That would not have been paid but for the contract being on foot.

Defendants’ submissions

[23]   Ms Narayan submitted that, according to Mr Lane’s evidence, the meeting between himself and Mr Khayami was only about five minutes long. During that time, according to Mr Lane, they only had they only had the opportunity to discuss the two properties he was thinking of selling. He also pointed out that neither property had a code compliance certificate from the Auckland Council who had advised Mr Lane it would not be cost effective. This fact was not disclosed to Mr Khayami, according to Mr Lane, because there simply was not time due to the shortness of the meeting. Moreover, according to Mr Lane, because he had only recently purchased 59 Ernie Pinches Street on 25 March 2021 from the company, he needed tax advice in the event that he sold the property so soon after purchase.

[24]   In addition, Ms Narayan contended that there was no oral agreement for the sale of the properties and even if there were, the elements for specific performance have not been  satisfied.   Counsel pointed  out that at the critical meeting held on   30 March 2021 between Mr Lane and Mr Khayami at Mr Lane’s residence, the parties do not agree on what occurred. The plaintiffs’ case is that an oral agreement was entered into in which all essential terms were agreed including the price, deposit amount, settlement date, and how the balance of the funds would be paid. Conversely, the defendants submitted that during the meeting Mr Khayami confirmed he would be interested in making an offer. He also said that he would have to check with his partner before doing so. More importantly, no agreement for sale and purchase was entered into as there was still much to be agreed between the parties. Ms Narayan argued that even if the Court concludes that an agreement had been reached, the plaintiffs have not suffered loss let alone irreversible loss.

[25]   Further, Ms Narayan highlighted several communications between the parties said to demonstrate the lack of an oral contract.  In particular,  counsel referred to  Mr Khalesi’s email to Mr Lane of 31 March 2021 where he says, “Of course we would

have to enter into an agreement which we can draft up as soon as we are given the go ahead.”

Discussion

[26]   There is no contemporaneous documentary evidence recording what was said at the 30 March 2021 meeting. There are only the parties’ accounts and their subsequent actions.

[27]   Mr Lane deposed that the meeting lasted only about five minutes. He recorded that he said to Mr Khayami that he would need to seek tax and legal advice before proceeding. For instance, 59 Ernie Pinches St had recently been sold to him personally from Fast Spark Developments Ltd and he thought there could be tax liabilities associated with re-selling the property in a short amount of time. In addition, the purchase price was never directly discussed; he had mentioned a proposed price only to his Bartercard broker. Mr Lane stated that Mr Khayami told him that he would need to discuss the offer with his  partner first.  It  was  not  clear  to  Mr  Lane whether Mr Khayami meant a business partner or his wife. They both agreed that they needed to consult with their respective lawyers.

[28]   Mr Khayami, on the other hand, gave evidence that the meeting was 25 to 30 minutes long. He says all the essential terms were accepted, namely that the vendors would  be  Mr  Lane  and  Fast  Spark  Developments,  the  purchasers  would  be  Mr Khayami and Mr Khalesi, the agreement was for the sale of 59 and 59A Ernie Pinches St, Mount Roskill, the purchase price would be $1,559,000 inclusive of GST, there would be a deposit of 100,000 Bartercard dollars, that the balance of the purchase price would be settled by 250,000 Bartercard dollars and $1,200,000 cash, settlement would be 45 days from the date the agreement was unconditional, and the agreement was conditional on the plaintiffs being satisfied as to their due diligence investigation.

[29]   I found Mr Lane to be a very credible witness. Parts of his evidence cast real doubt on the account of the meeting given by Mr Khayami. For instance, Mr Lane did not know at the time that Mr Khalesi was to be the second purchaser. It would therefore not be possible for him to agree to such a term, which was an essential one.

There was no indication that Mr Khayami was authorised to legally bind Mr Khalesi. Mr Lane also did not advise that Fast Spark Developments owned one of the properties and would be one of the vendors besides himself personally.

[30]   In addition, Mr Lane gave evidence that the use of Bartercard came with complications that would need to be resolved. Resolution of those issues, for instance the 15 per cent commission fee taken by Bartercard, would likely affect the purchase price. It is seems unlikely that those issues were properly and conclusively resolved at a short meeting without any lawyers present.

[31]   Indeed, it is seems unlikely that Mr Lane, meeting a prospective buyer for the first time, before receiving any legal or financial advice, and without a lawyer present, intended to enter into a binding oral contract for the sale and purchase of his properties. In this manner the present case is on all fours with Carruthers v Whitaker.12 The parties clearly intended that a formal written contract would be drawn up and then be approved by their respective solicitors. This is demonstrated by their subsequent actions. For example, on 31 March 2021 Mr Khalesi emailed Mr Lane (emphasis added):

Hi Les,

I trust you are well. We spoke this morning and having discussed the matter further with Shan he has now discussed the same with Barter Card.

Can you confirm, if our client deposits $100,000 of barter card dollars into your Barter Card account that you authorise barter card to immediately return the fund to our client if the agreement (over the two properties) is not declared unconditional within the 3 working days of the date of the agreement?

Of course we would have to enter into an agreement which we can draft up as soon as we are given the go ahead.

Secondly, if 350k of barter card dollars is not feasible, say our client can get

$180k what would you consider the cash component would have to be and is that an acceptable position?

I am at work for some time due to the amount of work, so please contact me on [number] if you wish to discuss in person.

Kind regards Sam Khalesi Director

12     Carruthers v Whitaker [1975] 2 NZLR 667 (CA).

[32]   Mr Khalesi gave evidence that the phone call referred to in the above email was made “to be sure that the Agreement was drafted correctly”.

[33]Mr Lane replied on 1 April 2021:

I except (sic) under the term of bartercard that if the agreement does not become [un]conditional, … any amount paid into my account will be refunded to the senders account.

The further T$250k should be included as a condition and collected in cash NZD if not paid in trade dollars.

[34]Mr Khayami responded the same date:

Thanks guys I’ll have the funds transferred over and if we can start working on the agreement to start our due diligence process.

Thanks Shahin

[35]Mr Khalesi replied that day to both Mr Khayami and Mr Lane:

We will get an SP done quickly today.

Could you sign it as soon as possible and send back to me. Kind regards

Sam Khalesi Director

[36]After the emails were sent, Mr Khayami sent Mr Lane the following texts:

Hi Les thanks for your help and the 100k barter should show in your account now and Sam is organising the agreement hoping to get to you today but if not first thing Tuesday. Thanks again

If your happy I can even drop off the signed forms to you so that you can have a look over the weekend or whenever and get your lawyer to check it then sign and send back?

Agreement sent please read over and once happy and signed please sent back to the lawyer. Thanks.

[37]Later that day Mr Lane text messaged Mr Khayami:

I just found out my lawyers are gone for the weekend. Agreement looks to me okay. But have to sign it at the lawyer.

[38]   I do not consider this last message displaces the understanding of the parties that a formal agreement was being drawn up to finalise terms. Mr Lane is a layperson who was yet to receive legal advice, after indicating that he needed to do so. It is clear that his text message that the agreement “looks to me okay” did not amount to him accepting the terms of the written agreement. His statement “have to sign it at the lawyer” is consistent with his earlier representations that he needed to take advice on the terms before agreeing to anything. In my assessment, this explanation is the more credible when weighing all the evidence of the parties including their texts and oral testimony given during the hearing.

[39]Accordingly, Richmond J’s reasoning in Carruthers v Whitaker is apt:13

… the ordinary inference from their conduct is that they have in mind and intend to contract by a document which each will be required to sign. It is unreasonable to suppose that either party would contemplate that anything short of the signing of the signing of the document by both parties would bring finality to their negotiations. Furthermore both parties would expect their solicitors to handle the transaction in a way which would give them proper protection from the legal point of view.

[40]   Moreover, I am satisfied that other elements of the communications following the meeting reinforce my conclusion that there was no oral agreement on the essential terms. For example, Mr Khalesi and Mr Lane’s exchange as quoted above discusses the breakdown of the purchase price between Bartercard trade dollars and cash New Zealand dollars. I consider that this demonstrates that there was no finalised agreement during the 30 March 2021 meeting as to how the purchase price would be paid. The parties were still negotiating and deciding on the purchase price and how it would be apportioned. Put another way, the final details over key aspects of the proposal needed to be concluded following the taking of advice by Mr Lane.

[41]   In any event, I consider the present circumstances analogous to Fraser v McHardy.14 There, the issue of GST was important, because if the IRD did not accept the transaction was zero-rated, the tax burden would have fallen on the vendor. It was unlikely the vendor would have agreed to this, and it demonstrated in Thomas J’s view the lack of certainty. Here the split of the purchase price into Bartercard trade dollars

13     At 671.

14     Fraser v McHardy HC Palmerston North CIV 2016-454-115, 27 March 2018.

and cash New Zealand dollars was a similar issue. There was a potential burden on the vendor in the form of Bartercard commission fees.

[42]   Mr Gilchrist on the other hand submitted that rather than being negotiations as to terms, the discussion over the purchase price apportionment was an exploration of a possible change of position. However, when viewed as a whole, that is unlikely. If the contract had been settled and concluded with sufficient precision to finalise the essential terms, it is unlikely that only a day later a possible change of position was needed or contemplated because in that time it had transpired that payment of the Bartercard sum may not be feasible. It would not be unreasonable to expect that either

(a) in agreeing to the purchase price and its apportionment Mr Khayami knew it was feasible to for him to pay it or (b) Mr Khayami needed to further explore the feasibility of him paying by Bartercard and therefore the proposal was left on tentative terms with finalisation to follow in writing. Otherwise, Mr Khayami would have been binding himself to an agreement he risked being unable to fulfil. That course of action is unlikely to have been his intention.

[43]    Compounding the lack  of  certainty  as  to  parties  discussed  above  was  Mr Khalesi and Mr Khayami’s representations that they were solely in a lawyer-client relationship and not joint purchasers. In his 31 March email Mr Khalesi referred to Mr Khayami as “our client” several times and on 1 April Mr Khayami asked Mr Lane to respond to “the lawyer’s” email.

[44]   Finally, while it would have been prudent for Mr Lane to make clear that the deposit should not be paid until the agreement was signed, I do not consider the payment of the Bartercard sum is conclusive of the parties’ intentions. As set out in the Bartercard terms of service, a “trade dollar” is not legal tender. Any entry in a member’s trade account can be reversed at the request of the selling member and the buying member. Members may also take out a “credit line” of Bartercard trade dollars. There appears to be an ease of payment and reversal. In such circumstances, the payment and apparent acceptance of a deposit does not have the same strength of indicating an intention to be bound as, for instance, a non-refundable deposit which is invariably a standard term with written sale and purchase agreements.

[45]   For the above reasons, I conclude that no binding oral contract was formed between the parties.

Was the oral agreement partly performed so that a binding and enforceable contract exists between the parties?

[46]   The plaintiffs’ case is that by paying the 100,000 Bartercard trade dollars, they carried out part of the contract, namely the purchase price, and are entitled to rely on the doctrine of part performance. However, as I have found there was no binding oral contract, the first limb in the test set out by Tipping J in TA Dellaca Ltd v PDL Industries Ltd and approved by the Court of Appeal in Nguyen v SM & T Ltd is not met.15

Are the plaintiffs entitled to an order for specific performance or damages?

[47]   As I have concluded that there was no binding and enforceable contract between the parties, I need not consider this issue further. The plaintiffs’ claim for specific performance must fail.

Decision

[48]   The application by Sam Khalesi and Shahin Khayami for specific performance and damages is dismissed.

[49]   Counsel previously agreed that costs would be set on a 2B basis. Counsel are invited to file memoranda of up to five pages on the issue of costs on that basis within one month.

Harvey J

15     Nguyen v SM & T Ltd CA21/2016, 6 December 2016.