Reynolds v Barratt - [2013] NZHC 2185

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-7427 [2013] NZHC 2185

BETWEEN
SHARON LOUISE REYNOLDS,

ROBERT NEWCOMB LEARY, LYNETTE MAREE DUNCAN AS EXECUTORS OF THE ESTATE OF PATRICIA ANSTEAD LEARY Plaintiffs

AND

SHARYN DAWN BARRATT, DOUGLAS JAMES BARTLETT, TIMOTHY HARRISON AS TRUSTEES OF THE BARRATT FAMILY TRUST Defendants

Hearing: 24 June 2013

Appearances:

G D Wiles for Plaintiffs
N P Tetzlaff for Defendants

Judgment:

27 August 2013

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on
27 August 2013 at 12.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Thorne Thorne White & Clarke-Walker, Auckland
Gaze Burt, North Shore City

REYNOLDS v BARRATT [2013] NZHC 2185 [27 August 2013]

Introduction

[1] On 12 December 2012 the plaintiffs filed a statement of claim and an application for summary judgment. Both sought specific performance of a tender agreement dated 4 May 2012 (“the Agreement”). Under the Agreement the defendants agreed to purchase from the plaintiffs a property (“the property”) at 80
Cliff Road, Torbay, on Auckland’s North Shore, for the sum of $2,580,000.

[2] The property comprises more than 3,300 square metres. Mr Bartlett, one of the defendants, gave evidence that the Barratt Family Trust had had an interest in the property for a long time and since September 2011 had put various offers to the owners. In his affidavit of 1 February 2013 he noted that the property has over 200 trees on it, and that this has always been a “significant issue”. The existing building on the property at relevant times was a small bungalow. The Trust’s intention was to remove the bungalow, replacing it with a much larger house, over 30 metres in length. Mr Bartlett noted that would require a larger building site, and trees would need to be removed. He also referred to other issues that would need to be addressed in order to build a home of the preferred type, including cliff stability, water run-off and visual impact.

[3] The plaintiffs allege that, under the Agreement, the defendants were obliged to pay a deposit of $258,000 upon the Agreement becoming unconditional, which they say occurred on 13 September 2012. Settlement would then have followed 60 days later, on 12 November 2012.

[4] However, the defendants purported to cancel the Agreement, relying on a claim that clause 23.0 of the Agreement had not been satisfied. Clause 23.0 was in the following terms:

This agreement is conditional upon the council agreeing to issue a permit to remove the seven trees identified on an annexed site plan on or before 90 days of receiving notice of acceptance of the Tender.

[5] The defendants’ claim that clause 23.0 was not satisfied rests on an assertion that the permission to remove the trees, which was in fact granted by Auckland Council (“the Council”), was based on the wrong plan and that, as a consequence,

one of the existing trees on the site would remain, and severely restrict the type of…

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: [2013] NZHC 2185
Decision Date: 27 August 2013

CaseChat Overview and Summary

In Reynolds v Barratt, the plaintiffs sought summary judgment against the defendants for losses incurred following the defendants’ purported cancellation of a property sale agreement. The defendants argued that they were entitled to cancel the agreement due to non-compliance with a condition precedent regarding the removal of trees from the property. The court found that the defendants’ version of events was inherently lacking in credibility and that the defendants had no defence to the claim. The court granted summary judgment in favour of the plaintiffs for the total sum of $246,793.44, which included claims for agents' commission and promotional costs on the second sale of the property.

The key issue in the case was whether the defendants’ cancellation of the property sale agreement was lawful. The court found that the defendants’ claim that they had not received the correct site plan for the removal of trees was not credible. The court held that the defendants had an obligation to ensure that the condition precedent regarding the removal of trees was satisfied, and that their failure to do so justified the plaintiffs’ cancellation of the agreement. The court also found that the defendants’ purported cancellation amounted to repudiation of the contract, and that the plaintiffs were entitled to recover their losses as a result of the repudiation.

The court’s approach to summary judgment was to determine whether the defendants had any defence to the claim, and whether there was any real question to be tried. The court held that the defendants had no defence to the claim, and that there was no real question to be tried. The court rejected the defendants’ arguments regarding the quantum of the plaintiffs’ claim, finding that the plaintiffs were entitled to recover their losses as a result of the defendants’ repudiation of the contract.

Orders