MacDonald v C1 Gloucester Street Ltd - [2012] NZHC 2842

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2010-409-001531 [2012] NZHC 2842

BETWEEN RICHARD WILLIAM MACDONALD Plaintiff

ANDC1 GLOUCESTER STREET LIMITED First Defendant

Hearing: 8 August 2012

Counsel: H C Matthews and M A Jones for the Plaintiff
R G Smedley for the Defendant

Judgment: 30 October 2012

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 30 October 2012 at 11.00 am
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Distribution:
HC Matthews: hcm@whitefox.co.nz
MA Jones: maj@whitefox.co.nz
RG Smedley: Richard.Smedley@ah.co.nz

MACDONALD V C1 GLOUCESTER STREET LIMITED HC CHCH CIV 2010-409-001531 [30 October 2012]

Introduction

[1] The plaintiff, Mr MacDonald, sues the defendant, C1 Gloucester Street Limited, for the recovery of a deposit paid pursuant to an agreement for sale and purchase of real estate entered into between the parties dated 20 June 2007. Mr MacDonald also seeks interest and costs.

[2] C1 Gloucester Street Limited resists Mr MacDonald’s claim. It in turn counterclaims against him, seeking damages. Initially, C1 Gloucester Street Limited sought specific performance, but in opening its case, Mr Smedley advised me that the company has elected to accept what it says is Mr MacDonald’s repudiation of the agreement. He sought an order that Mr MacDonald was liable for damages for breach and a further order that C1 Gloucester Street Limited could come back before the Court if necessary, once it had been able to quantify its losses. C1 Gloucester Street Limited also seeks interest and costs.

[3] There is little or no dispute about the agreement for sale and purchase itself and the issue raised by the proceedings can be shortly stated — was the agreement for sale and purchase varied subsequent to its execution?

The Agreement for Sale and Purchase

[4] Mr MacDonald and C1 Gloucester Street Limited entered into the agreement for the sale and purchase on 20 June 2007. Although Mr MacDonald signed the agreement for himself or his nominee, there is no suggestion that any nomination was made.

[5] The agreement related to two apartment units then to be built on level 21 of a building development being undertaken by C1 Gloucester Street Limited at
166 Gloucester Street, Christchurch, together with four associated carparks. The purchase price was $2.6 million, and the deposit was $195,000.

[6] The properties were described in the agreement as follows:

Two units (being level 21) and 4 car parks (“the Unit”…) being unit 187,
207, 199, 200 together with 2/13 share in unit 191 on the attached plan (“the
Plan”) being a draft unit title subdivision of the building… to be constructed…

[7] The draft unit title subdivision plan was annexed as schedule 1 to the agreement. It showed that one of the two principal units, unit 187, was to comprise
310 square metres and that the other unit, unit 207, was to comprise 110 square metres. The units were shown as separate units on the plan. They were divided by areas of common property, an accessory…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2012] NZHC 2842
Decision Date: 30 October 2012

CaseChat Overview and Summary

The plaintiff, Mr MacDonald, sued the defendant, C1 Gloucester Street Limited, for the recovery of a deposit paid pursuant to an agreement for the sale and purchase of real estate between the parties. C1 Gloucester Street Limited counterclaimed for damages. The central issue was whether the agreement for sale and purchase was varied after its execution. The court held that the agreement for sale and purchase was clear in its terms and required the defendant to construct two units, which it failed to do. The court found that there was no variation to the agreement and that Mr MacDonald was entitled to cancel the contract for the defendant’s breach. The court ordered the defendant to refund the deposit paid by Mr MacDonald. The court also ordered that interest should be payable at the actual rate at which interest was earned by the defendant’s solicitors, as the stakeholder, from the date of payment of the deposit until 23 March 2010. From that date until the date of judgment, the rate or rates of interest applicable from time to time under s 87 of the Judicature Act 1908 should apply. The court invited the parties to try and reach agreement on the calculation of interest and, if they were unable to do so, to refer the matter back to the Court by way of memorandum. The court held that Mr MacDonald was entitled to his reasonable costs and disbursements and directed the parties to try and agree costs. If they were unable to do so, the court directed Mr MacDonald to file and serve any application for costs within 15 working days of the date of this judgment and any reply by C1 Gloucester Street Limited within a further 10 working-day period.

Orders