Moeke v Raukawa Iwi Development Ltd - [2019] NZHC 3166

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2019-463-000046

[2019] NZHC 3166

BETWEEN
FORD BENJAMIN MOEKE

Applicant

AND

RAUKAWA IWI DEVELOPMENT LIMITED

First Respondent

SOUTH WAIKATO DISTRICT COUNCIL

Second Respondent

Hearing: 7 November 2019

Appearances:

K J Patterson for the Applicant

K F Cornegé and M S Crocket for the Respondents

Judgment:

4 December 2019

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 4 December 2019 at 10.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Mark Copeland Lawyers, Rotorua K J Patterson, Tauranga

MOEKE v RAUKAWA IWI DEVELOPMENT LTD [2019] NZHC 3166 [4 December 2019]

[1] The applicant seeks summary judgment on his statement of claim against the respondents.

[2] It is the second application the Court has dealt with in connection with an agreement for sale and purchase entered into between the applicant and the first respondent on 2 October 2018. The agreement was cancelled by the first respondent in circumstances referred to in a previous judgment I issued on a related caveat application:1
Background

[4] On 2 October 2018 the applicant, Ford Moeke, entered into an agreement for sale and purchase with the then registered proprietor of the property, Raukawa Iwi Development Limited. It is agreed that the agreement became unconditional and that settlement was to take place on 7 December 2018.

[5] On 7 December 2018 Raukawa’s solicitors wrote to Mr Moeke and advised that it had elected not to sell. Mr Moeke’s solicitors issued a settlement notice requiring settlement within 12 working days. Settlement with Mr Moeke did not occur because Raukawa had resold the property to the respondent, South Waikato District Council. Registration of Raukawa’s transfer of its interest in the property to the Council took place on the very day that Raukawa was supposed to settle with Mr Moeke, 7 December 2018. The Council accepts, for the purpose of this proceeding, that it knew that Mr Moeke had a binding contract with Raukawa to buy the property. It says (with scant elaboration) that it acted in the public interest in stepping in, as an alternative purchaser, to defeat the completion of his purchase.

[6] On 20 March 2019 the Council entered into an agreement for sale and purchase with a third party. That agreement became unconditional on 14 June 2019 and settlement was due to take place on 26 July 2019. The date for settlement has been extended to 13 September 2019.

[7] On 16 April 2019 Mr Moeke lodged his caveat against the title to the property. He claims a caveatable interest pursuant to a cestui qui trust. He contends that he acquired an equitable interest in the property pursuant to the agreement for sale and purchase with Raukawa, and that he was deprived of his right to acquire the property by the fraud of Raukawa and the Council. On this basis he claims an equitable interest in the property sufficient to…

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: [2019] NZHC 3166
Decision Date: 4 December 2019

CaseChat Overview and Summary

In the case of Moeke v Raukawa Iwi Development Ltd, the High Court of New Zealand considered an application for summary judgment by Ford Moeke against Raukawa Iwi Development Ltd and South Waikato District Council. The dispute arose from an agreement for the sale and purchase of a property, which Raukawa repudiated and subsequently sold to the Council, thwarting Mr Moeke's intended purchase. Mr Moeke sought damages for breach of contract, land transfer fraud, and conspiracy to defraud. The court examined whether the respondents had a defence that would prevent the granting of summary judgment on liability.

The court determined that Raukawa had clearly repudiated the contract, making it liable for breach of contract. However, the court could not determine the precise loss suffered by Mr Moeke, as the valuation of the property was disputed and the likelihood of consent for Mr Moeke's intended subdivision was uncertain. As for the conspiracy to defraud, the court found that the Council's actions, while claimed to be in the public interest, amounted to land transfer fraud because they deliberately defeated Mr Moeke's known interest in the property. This conduct met the threshold for an unlawful means conspiracy as it caused actual damage to Mr Moeke's legitimate interests. The court also rejected the respondents' contention that their actions could not constitute an unlawful means for conspiracy purposes.

While the court found that the respondents did not have a tenable defence to liability on any of the claims, it could not assess the quantum of damages at the summary judgment stage. The court, therefore, granted summary judgment on liability alone and directed the parties to file memoranda on costs. The case will proceed to trial to determine the quantum of damages.

Orders