SBD Limited v Mak - [2025] NZHC 3170

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…

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.

Continue reading SBD Limited v Mak

Details

AGLC: SBD Limited v Mak [2025] NZHC 3170
Case: [2025] NZHC 3170
Decision Date: 23 October 2025

CaseChat Overview and Summary

This proceeding concerns Paul Mak's failure to settle the purchase of a property from SBD Limited, following a Court order for specific performance. On 1 October 2024, the Court ordered Mr Mak to perform his obligations under the sale and purchase agreement by 31 March 2025. Mr Mak failed to comply with the order. SBD now seeks arrest and committal orders enforcing the orders for specific performance.

The legal issues before the Court were whether the specific performance order was an "order to pay a sum of money" within the meaning of s 17 of the Contempt of Court Act 2019 (CCA) and, if not, whether the Court has the inherent power to sanction a purchaser who fails to comply with an order for specific performance of a contract to purchase land.

The Court held that the specific performance order was not an "order to pay a sum of money". Once an order for specific performance had been made, there was a mutuality of obligations and performance between the parties which was under the Court's control. The purchaser's obligation to pay the balance of the purchase price was subject to the vendor's compliance with the agreement, including being ready, willing and able to settle on the relevant settlement date. As the specific performance order was not a money judgment, the enforcement processes available in the High Court Rules were not available. If an order for specific performance fell within s 17, a vendor could never enforce an order for specific performance against a purchaser through the court-imposed sanctions under s 16 of the CCA. However, the Court did not have jurisdiction to sanction a purchaser for failing to comply with an order for specific performance of a contract to purchase land. The Court has inherent powers to prevent its processes being abused by its orders being ignored. The Court ordered Mr Mak to file an affidavit confirming his assets and liabilities, income and expenditure and means of complying with the order for specific performance, including steps he has taken and can take to comply with the order.

The final judgment on the application is reserved.

Orders