Orongomai Reserve Limited v Cashmere Lakes Reserve Limited HC Christchurch CIV 2005-409-002171

[2008] NZHC 2517

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2005-409-002171

BETWEEN  ORONGOMAI RESERVE LIMITED Plaintiff

ANDCASHMERE LAKES RESERVE LIMITED

First Defendant

ANDWORCESTER PROPERTIES LIMITED Second Defendant

Hearing:         20 August 2008 (By telephone conference) Counsel:   R Osborne and J P Forsey for Plaintiff

A J Forbes QC and G Tyrrell for First Defendant
No appearance for Second Defendant

Judgment:      20 August 2008

JUDGMENT NO. 3 OF FOGARTY J

[1]      Following judgment No. 2 the parties have been unable to agree terms on which settlement of the property is to be completed.  The first defendant has sought further directions.   The first defendant, following judgment No. 2, which was delivered on 22 July, wrote a letter of 24 July setting out proposed terms of settlement.

[2]      The hearing today and the papers I have read are directed  essentially to competing views as to the terms proposed.   Having heard argument the terms proposed by Saunders and Co of 24 July are modified in this respect:

•    The  time  now  allowed  for  settlement  on  the  adjusted  balance  of

$1,199,983 is 4 pm on Friday, 19 September.

ORONGOMAI RESERVE LIMITED V CASHMERE LAKES RESERVE LIMITED  AND ANOR HC CHCH CIV 2005-409-002171  20 August 2008

•    Clause 4 also applies which means that costs on a 2B basis are fixed at

$1,880, payable now but with the option that it be added to the settlement amount.

•   Cashmere Lakes Reserve Limited will retain the sum of $17,799.59 in the trust account of their solicitors, Saunders and Co, pending a judgment on whether or not there is joint liability with Worcester, which I have held, in judgment No. 2, to be premature to decide at this stage and which continues to remain my view.

•   Cashmere Lakes Reserve Limited will also retain the sum of $50,000 in Saunders and Co, their solicitors’ trust accounts, as retention for any of the issues relating to the chattels or various damage to the property.  That issue will arise after there has been an inspection, which I understand is due shortly.

•   Leave is reserved to the parties to apply to either address the question of damages or the release of funds, as the case may be.

[3]      It  remains  to  give  some  brief  reasons  why  I  have  not  accepted  the submissions of Mr Forbes as to the time for settlement.  I think there is some force in Mr Osborne’s  submission  that  today is the first day when his clients have  absolute clarity as to the terms required for settlement.  I am concerned that there be no doubt that they are given a reasonable commercial period of time to raise these funds and in that regard, because the point is balanced, chosen to effectively allow one calendar month from today to ensure that the time is sufficient.

Solicitors:

Duncan Cotterill, Christchurch, for Plaintiff (Counsel acting: R Osborne)

Saunders & Co, Christchurch, for First Defendant (Counsel acting: A J Forbes QC)

R A Fraser & Associates, Christchurch, for Second Defendant (Counsel acting: S Savill)