SBD Limited v Mak
[2025] NZHC 3170
•23 October 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-258
[2025] NZHC 3170
BETWEEN SBD LIMITED
Applicant
AND
PAUL TARETIA MAK
Respondent
Hearing: 6 October 2025 Appearances:
D J Chisholm KC and J D Ryan for Applicant W C Pyke for Respondent
Judgment:
23 October 2025
INTERIM JUDGMENT OF GARDINER J
This judgment was delivered by me on 23 October 2025 at 11.00 am pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors/Counsel:
D Chisholm KC, Barrister, Auckland Claymore Partners Limited, Auckland MacDonald Lewis Law, Auckland
W Pyke, Barrister, Auckland
SBD LTD v MAK [2025] NZHC 3170 [23 October 2025]
[1] This proceeding concerns Paul Mak’s failure to settle the purchase of the property at Lot 2 of 44 Shelly Beach Road, St Mary’s Bay, Auckland from SBD Ltd (SBD).
[2] On 1 October 2024, this Court ordered that Mr Mak perform his obligations pursuant to the sale and purchase agreement by 31 March 2025.1 Mr Mak failed to settle the purchase or to engage with SBD.
[3] SBD now seeks arrest and committal orders enforcing the orders for specific performance.
Background
[4] The parties entered into a sale and purchase agreement for the property dated 16 October 2021. Pursuant to the agreement, SBD would sell the property to Mr Mak for $3,095,000 (plus GST (if any)). Mr Mak paid the deposit of $309,500.
[5] Mr Mak failed to settle on the settlement date of 17 November 2023. SBD issued a settlement notice which required Mr Mak to settle on 5 December 2023. Mr Mak failed to comply with the settlement notice.
[6] On 25 January 2024, SBD filed a statement of claim for specific performance of the sale and purchase agreement and an application for summary judgment. The application was heard on 25 July 2024. Mr Mak defended the application on the ground of impossibility. In a reserved judgment issued on 1 October 2024, the Court found that SBD had established that Mr Mak had no arguable defence of impossibility and ordered that he specifically perform the agreement. Mr Mak was required to:2
… specifically perform the Agreement by 31 March 2025 and to do all things necessary to perform his obligations under the Agreement with leave reserved to seek further orders if necessary.
[7] As noted above, Mr Mak failed to fulfil these orders. This was despite SBD’s attempts to assist him with settlement. SBD’s solicitors wrote to Mr Mak’s solicitors
1 SBD Ltd v Mak [2024] NZHC 2728.
2 At [33].
on 8 November 2024 proposing settlement terms, including the provision of vendor finance. Mr Mak made no substantive response, despite his solicitor confirming that the correspondence had been provided to Mr Mak. SBD’s solicitors sought updates from Mr Mak’s solicitor on 3 December 2024 and 23 January 2025. Mr Mak’s solicitor responded that he had no instructions.
[8] On 26 March 2025, as the date for compliance approached, SBD’s solicitors sought a further update. None was forthcoming. On 31 March 2025, SBD sent an updated settlement statement and confirmed they were ready, willing and able to complete settlement. Mr Mak did not respond and did not settle the purchase.
[9] On 15 April 2025, SBD’s solicitors wrote to Mr Mak’s solicitor noting that Mr Mak was in contempt of this Court’s orders. SBD made a final offer to settle, again involving vendor finance, with settlement to occur on 30 April 2025. Mr Mak did not respond.
[10] This has led SBD to seek what it calls the “last resort stage of enforcement”. SBD applies for an order pursuant to s 16(4)(a)(i) of the Contempt of Court Act 2019 and the Court’s inherent jurisdiction for a warrant committing Mr Mak to a term of imprisonment not exceeding six months. Alternatively, that the Court punish Mr Mak for his contempt of court as the Court deems just.
[11] Mr Mak opposes the application on the grounds that an order for arrest and committal is not available against a party in a civil proceeding who is in default of an order to pay a sum of money. Alternatively, there is insufficient evidence to satisfy the Court beyond reasonable doubt that Mr Mak has, without reasonable excuse, failed to comply with the Court’s order. Furthermore, SBD has an alternative remedy in damages.
[12]Mr Mak has not filed an affidavit in support of his opposition.
Legal principles
Contempt of Court Act 2019
[13] The Contempt of Court Act 2019 (CCA) reformed the law governing certain forms of contempt, including failing or refusing to comply with certain court orders. Subpart 4 of the CCA confers a statutory power on a court to enforce certain court orders and undertakings:
16Certain court orders and undertakings may be enforced
(1)This section applies to—
(a)any interim or final order, decision, decree, direction, or judgment of a court (a court order) to do or abstain from doing something, except as provided in section 17:
(b)any undertaking given to the court if, on the faith of the undertaking, the court has sanctioned a particular course of action or inaction.
(2)A court may enforce the court order or undertaking against the party, non-party, or other person bound by the order or undertaking by taking action provided for in subsections (3) and (4) on application by—
(a)the party who sought the order or undertaking being enforced; or
(b)a person who benefits from, or has an interest under, the order or undertaking; or
(c)the Solicitor-General, if the Solicitor-General is satisfied that there is a high degree of public interest in enforcing the order or undertaking.
(3)The court—
(a)must not proceed further under this section unless it is satisfied that other methods of enforcing the court order or undertaking have been considered and are inappropriate or have been tried unsuccessfully; and
(b)if so satisfied, must make a finding as to whether it is proved beyond reasonable doubt that—
(i)the court order or undertaking being enforced has been made in clear and unambiguous terms and is clearly binding on the person; and
(ii)the person had knowledge or proper notice of the terms of the court order or undertaking being enforced; and
(iii)the person has, without reasonable excuse, knowingly failed to comply with the court order or undertaking being enforced.
(4)On finding beyond reasonable doubt that the requirements of subsection (3)(b)(i) to (iii) are met, the court may—
(a)do any of the following:
(i)issue a warrant committing the person or a director or an officer of the body corporate, as the case may be, to a term of imprisonment not exceeding 6 months:
impose a fine,—
(A)in the case of an individual, not exceeding $25,000; or
(B)in the case of a body corporate, not exceeding $100,000:
(iii)order the individual or a director or an officer of the body corporate, as the case may be, to do community work, not exceeding 200 hours, as the court thinks fit:
(b)if the court is the High Court, make a sequestration order in accordance with the rules of court.
…
17Jurisdiction to take certain action under section 16
(1)A court may take action under section 16 to enforce a court order to pay a sum of money only if the default in making payment is within an exception listed in section 3(2) of the Imprisonment for Debt Limitation Act 1908 or the order applies to money held by a person, trust, or entity other than the defaulter.
…
(emphasis added)
[14] None of the exceptions referred to in s 3(2) of the Imprisonment for Debt Limitation Act 1908 apply in this case.
High Court Rules 2016
[15] Rule 17.3 of the High Court Rules 2016 (HCR) allows for judgments to be enforced by one or more enforcement processes:
(a)an attachment order;
(b)a charging order;
(c)a sale order;
(d)a possession order;
(e)an arrest order;
(f)a committal warrant, or an order imposing a fine or community work, made in accordance with subpart 4 of Part 2 of the Contempt of Court Act 2019;3 and
(g)a sequestration order.
[16] No enforcement process may be issued until the period specified in the judgment for payment or performance has expired.
Arrest orders
[17] An arrest order authorises and requires an enforcing officer to arrest any person named in the order and bring that person before the court at the time and place specified, and until then keep the person in safe custody.4
3 This sub-rule was inserted, as from 26 August 2020, by r 8 of the High Court (Contempt of Court) Amendment Rules 2020.
4 High Court Rules 2016, r 17.83.
[18] Rule 17.84 governs the procedure in relation to the Court’s power to issue an arrest order against a party who has not complied with an original court order as defined by s 16(1)(a) of the CCA:
17.84Power to issue arrest order
(1)In this subpart,—
enforceable undertaking means an undertaking described in subpart 4 of Part 2 of the Contempt of Court Act 2019
original court order has the same meaning as court order in subpart 4 of Part 2 of the Contempt of Court Act 2019.
(2)If a person has applied to the court to enforce an original court order or an enforceable undertaking and that person is entitled to make an application under section 16(2) of the Contempt of Court Act 2019, a Judge may issue an order arresting the non-complying party if,—
(a)in the case of an application to enforce an original court order, the Judge is satisfied that the non-complying party has been served with the order and has not complied with it;
(b)in the case of an application to enforce an undertaking, the Judge is satisfied that the non-complying party had knowledge or proper notice of the terms of the enforceable undertaking and has not complied with it.
[19] If the Court is satisfied an arrest order is appropriate, the order is commonly directed to lie in Court to provide the non-complying party with a final opportunity to comply with the underlying court order.5
Punitive sanctions for disobeying certain court orders
[20] The CCA introduced a new rule referring to the Court’s power to impose sanctions on a party for disobeying an original court order or enforceable undertaking.
[21] The party must first be brought before the Court on an arrest order.6 The Court may then impose the sanctions:
5 Francis v Ranita Handyman Services & Transport Ltd [2025] NZHC 2182 at [24].
6 High Court Rules, r 17.85(1). See Connolly v Eckhout [2022] NZHC 293 at [16].
17.85Court may impose sanctions for non-compliance with original court order or enforceable undertaking
(1)Where a party is brought before the court on an arrest order, the court may, if satisfied beyond reasonable doubt that the requirements of section 16(3)(b)(i) to (iii) of the Contempt of Court Act 2019 are met, impose a sanction under section 16(4) of that Act unless the party complies with the original court order or enforceable undertaking.
(2)A warrant committing a person to prison under section 16(4)(a)(i) of that Act must be in form E 9D.
(3)An order imposing a fine on a person under section 16(4)(a) (ii) of that Act must be in form E 9E.
(4)An order requiring a person to do community work under section 16(4)(a)(iii) of that Act must be in form E 9F.
(5)A sequestration order issued under section 16(4)(b) of that Act must be in form E 10.
Sequestration orders
[22] Sequestration orders are coercive rather than punitive like the sanctions described at r 17.85(2)(3) and (4). Sequestration is an ancient common law remedy for contempt where a person has wilfully disobeyed a court order.7
[23] Rules 17.86 and 17.87 govern the procedure for sequestration orders. These rules were also changed with the introduction of Subpt 4 of Pt 2 of CCA:
17.86Effect of sequestration order
(1)A sequestration order authorises and requires the sequestrator to enter and take possession of all the real and personal property of the party against whom it is directed.
(2)The sequestrator must obtain the rents and profits from the property until—
(a)the party complies with the original court order or the enforceable undertaking or an order to pay money into court in the way specified in the order or undertaking; or
(b)the court orders otherwise.
(3)A sequestration order may be in form E 10.
7 Pratt v Inman (1889) 43 Ch D 175 at 179.
17.87Court may issue sequestration order
(1)Where the court is satisfied beyond reasonable doubt that the requirements of section 16(3)(b)(i) to (iii) of the Contempt of Court Act 2019 have been met, the court may issue a sequestration order against the property of the non-complying party.
(2)The court can issue a sequestration order under subclause (1) only on notice to the non-complying party.
(3)The court must appoint a sequestrator of the property and the provisions of rules 7.61 to 7.67 apply, with all necessary modifications, as if the sequestrator were a receiver.
Submissions for Mr Mak
[24] Mr Mak opposes the application on two grounds. First, he says that the underlying orders of this Court are “in substance” an order for the payment of money. Therefore, arrest and committal orders are not available to SBD, in circumstances where the exceptions set out at s 3(2) of the Imprisonment for Debt Limitation Act do not apply.
[25] For Mr Mak, Mr Pyke refers to two authorities in support. In Summer & Winter Fuels Ltd v Pickens, the defendants had defaulted on a contract for sale of a business. The plaintiffs obtained summary judgment for specific performance of the agreement. The plaintiffs initially sought a writ of sale which was rejected by the Registrar as the order was not in terms of a judgment for a sum of money. The plaintiffs then sought an order for the defendants’ arrest. Tipping J took the view that no writ of arrest may be issued in respect of any judgment which represents “in substance” an order that the opposite party pay a sum of money.8
[26] In Morris v Douglas, the vendor of a plot of land obtained an order for specific performance requiring the purchaser to pay the purchase price.9 The plaintiff applied for a sequestration order or that the defendant be punished for contempt of court. The Court held that that these remedies were not available where the only reason for non-payment is that the purchaser does not have the funds to pay.10
8 Summer & Winter Fuels Ltd v Pickens (1990) 4 PRNZ 621 (HC) at 623.
9 Morris v Douglas (1996) 10 PRNZ 363 (HC).
10 At 368.
[27] Additionally, Mr Mak submits that SBD’s application fails because it has not adduced sufficient evidence to demonstrate beyond reasonable doubt that there has been knowing failure to comply with the orders without reasonable excuse (as required by s 16(3)(ii) of the CCA).
[28] Mr Mak also notes that SBD has not taken other enforcement options available to it, such as an order for examination.11
Submissions for SBD
[29] SBD disputes that it is seeking to enforce a judgment for the payment of money. Mr Mak’s submission, relying on Summer & Winter Fuels Ltd v Pickens, inserts a qualification into s 17 which is not present in the wording of the statute (being “in substance”).
[30] Even putting that aside, the order for specific performance cannot amount to an order to pay a sum of money. The Court’s orders required Mr Mak to perform his obligations under the sale and purchase agreement. This extends beyond merely requiring him to pay the purchase price, also applying to his various conveyancing obligations.
[31] Once an order for specific performance has been made, there is a mutuality of performance pursuant to the relevant contract. Payment of the purchase price by the purchaser is subject to the vendor’s compliance with the agreement including being ready, willing and able to settle on the relevant settlement date.
[32] There will be no “order to pay a sum of money” until the vendor seeks an order discharging the order for specific performance, cancels the agreement and then seeks an order for damages.
[33] Accordingly, SBD submits that the three requirements for an arrest order as summarised in Connolly v Eckhout are made out.12 There is no doubt that Mr Mak (through his solicitor) was served with the order, and he would know of the order
11 Contempt of Court Act, s 16(3)(a).
12 Connolly v Eckhout, above n 7, at [21]–[23].
requiring him to enact settlement of the property. He has also failed to engage with SBD’s attempts to assist.
[34] Further, Mr Mak had previously indicated that he would apply the sale proceeds of another property to the settlement sum; he argued in the summary judgment hearing that he would do so if granted more time. A great deal of time has elapsed, but SBD has not seen the funds. He has also failed to explain why he is not in a financial position to comply with the order.
Analysis
[35] In my view, there is merit to SBD’s submission that the specific performance order is not an “order to pay a sum of money” in terms of s 17 of the CCA. An order to perform a contract gives rights to both parties under the contract. Once an order for specific performance is made, there is a mutuality of obligations and performance between the parties which is under the Court’s control.13
[36] In the case of an order requiring specific performance of a contract for the sale and purchase of land, the purchaser’s obligation to pay the balance of the purchase price is subject to the vendor’s compliance with the agreement, including being ready, willing and able to settle (provide clear title) on the relevant settlement date. A court order of this kind is not simply enforcing payment of a debt or a money judgment.
[37] That a court order of this kind is not an order “to pay a sum of money” is reinforced by the fact that the beneficiary of the order cannot enforce the order as a money judgment. The enforcement processes available in r 17.3(a)–(d) of the HCR are not available. An attachment order, charging order, sale order or possession order all require a quantified money judgment. As do the enforcement processes in the insolvency jurisdiction.
[38] If an order for specific performance of a contract falls within s 17 where performance involves a party paying a sum of money, a vendor can never enforce an
13 Alexander v Gitmans CA11/04, 17 June 2004 at [21]; Pegasus Town Ltd v Wong (2011) 11 NZCPR 524 (HC) at [9]–[11]; and Maraetai Co Ltd v Yu [2020] NZHC 2870 at [6].
order for specific performance against a purchaser through the court-imposed sanctions under s 16 of the CCA.
[39] So, the specific performance order may not be enforced by the processes in the HCR because it is not a money judgment; nor by way of sanction or sequestration order under s 16 of the CCA because it is “in substance” an order to pay a sum of money. As Tipping J appeared to recognise in Summer & Winter Fuels Ltd the applicant is caught “between the devil and the deep blue sea”.14
[40] Mr Pyke suggested that a party in SBD’s situation could apply for a court-ordered examination under r 17.12. But an examination is not a means of enforcing an order; it is only a means of identifying assets to which an order under r 17.3(a)–(d) of the HCR might attach.
[41] To the concern that it would be draconian to enforce an order for specific performance requiring the person to pay a sum of money by a sanction such as committal or a fine, or sequestration order, there are several protections in place.
[42] First, an applicant must obtain an order for specific performance. It is open to the respondent to defend the application on the basis that they are unable to perform the contract (the defence of “impossibility”).
[43] Second, if an order for specific performance is made, the court asked to enforce the court order must be satisfied that all other methods of enforcing the order have been considered and are inappropriate or have been tried unsuccessfully (s 16(3)(a) of the CCA).
[44] Third, the court must find, beyond a reasonable doubt, that the person has, without reasonable excuse, knowingly failed to comply with the court order or undertaking being enforced (s 16(3)(b)(ii) of the CCA). This is necessarily a high threshold.
14 At 3.
[45] Fourth, the remedy is discretionary. The court may refuse to make the order despite the preconditions in s 16(3) being met.
[46] Despite the merit in SBD’s position, there is authority that the Court does not have jurisdiction to sanction a purchaser for failing to comply with an order for specific performance of a contract to purchase land. In addition to the authorities identified by counsel, Ronald Young J in Tawanui Developments Ltd v Harnett followed Tipping J in Summer & Winter Fuels Ltd and found that because an order for specific performance is “in substance an order to pay a sum of money”, the Court did not have the power to issue a sequestration order under r 17.84.15
[47] Going the other way, in Shawyer v Thow, French J was prepared to issue a sequestration order against Mr Thow who had deliberately and flagrantly disobeyed an order for specific performance of an agreement for sale and purchase of shares.16 The order required Mr Thow to pay Mr Shawyer the sum of $400,000 to complete the purchase. I note that Mr Shawyer was also in contempt of orders to attend an examination and to provide an affidavit as to his means, which may have influenced the Judge’s approach.
[48] It is not necessary for me to resolve this issue, because I am able to rely on the Court’s inherent powers to maintain its authority and to prevent its processes being obstructed and abused.17 Section 26(2) of the CCA confirms that nothing in the Act limits or affects any authority or power of a court, including the authority of the High Court under its inherent jurisdiction, to punish any person for contempt of court in any circumstances to which this Act does not apply.18
[49] Mr Mak is plainly in contempt of the order for specific performance. If the circumstances fall outside those for which sanctions can be imposed under s 16 of the
15 Tawanui Developments Ltd v Harnett HC Palmerston North CIV-2008-454-949, 13 October 2009 at [17]. The order here concerned an agreement for sale and purchase of a section in a subdivision.
16 Shawyer v Thow HC Invercargill CIV-2010-425-116, 20 October 2011.
17 Philip Jospeh Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington) at [21.7.3].
18 Section 27 provides that if the High Court exercises its inherent jurisdiction to punish for contempt the maximum penalty that may be imposed is six months’ imprisonment.
CCA, the Court has inherent powers to prevent its processes being abused by its orders being ignored.
[50] Before taking any further steps, I am minded to give Mr Mark another opportunity to respond. He chose not to file an affidavit explaining his financial position and why he has not complied with the order and performed the contract. Mr Mak may wish to reconsider that approach. While the onus is on SBD to prove that Mr Mak does not have a reasonable excuse for his non-compliance, it is for Mr Mak to provide the excuse.
Result
[51] I order Mr Mak to file and serve within five working days an affidavit confirming:
(a)his assets and liabilities;
(b)his income and expenditure; and
(c)his means of complying with the order for specific performance, including steps he has taken and can take to comply with the order.
[52]My final judgment on the application is reserved.
Gardiner J
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