Shawyer v Thow HC Invercargill CIV-2009-425-177

[2011] NZHC 952

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2009-425-177

BETWEEN  JOHN COBDEN SHAWYER Applicant

AND  BRENDAN SHANE THOW Respondent

Hearing:         29 August 2011 (by telephone) (Heard at Dunedin)

Appearances: M J Tingey for Creditor

R A Weir (no longer acting for the Debtor but appearing as a courtesy) No appearance by the Debtor

Judgment:      29 August 2011

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

as to discharge of order for specific performance

[1]      The judgment creditor applies for orders which would bring to an end an order for specific performance previously made against the debtor, enabling the creditor to cancel the agreement for sale and purchase which was the subject of the Court’s order.

[2]      Mr Thow did not appear.   Mr Weir, who previously acted for Mr Thow, appeared as a courtesy to the Court.  It had been a condition of Mr Weir’s withdrawal as the solicitor for the debtor that the debtor file and serve a new address for service (replacing that of Mr Weir’s firm).   Mr Thow has failed to comply with that requirement and  accordingly his address for  service  remains as it  was, and  the

applicant has served this application in accordance with the Rules.

SHAWYER V THOW HC INV CIV-2009-425-177 29 August 2011

The specific performance judgment

[3]      By written agreement dated 16 December 2008 Mr Thow agreed to purchase from  Mr  Shawyer  50  ordinary shares  in Alpine  Heliski  Limited.    He  failed  to complete the transaction when the agreement became unconditional in January 2009.

[4]      Mr Shawyer, in a defended proceeding, obtained summary judgment by way of a decree of specific performance in his favour on 3 July 2009.

[5]      Mr Shawyer took steps towards the enforcement of the judgment, including by examination of Mr Thow, but none of those steps achieved any degree of performance on the part of Mr Thow.  This has led to a contempt application which has not yet been determined.   The purchase price on the contract remains wholly unpaid.

Jurisdiction in relation to orders of specific performance

[6]      This Court has jurisdiction to cancel orders of specific performance which it has made.   Recent cases in this jurisdiction include my own decision in Pegasus Town Ltd v Wong [2010] 11 NZCPR 524 and those of Associate Judge Bell in Vincent Street Trustee Ltd v de Jongh [2011] 11 NZCPR 794 and Arranmore Developments Ltd v Zeeland Developments Ltd [2011] 11 NZCPR 825.  Reference may also be made to the leading authority of Johnson v Agnew [1908] AC 367.

[7]       I am satisfied that Mr Shawyer is justly entitled to an order discharging the order for specific performance.  The debtor has failed to comply with the order for specific performance over a lengthy period despite conscientious and indeed comprehensive efforts by Mr Shawyer to enforce the judgment.

[8]      Mr Shawyer seeks leave, if the order for specific performance is discharged, to cancel the agreement for sale and purchase dated 16 December 2008.   That is entirely appropriate in the circumstances.  Given the approach which I adopted in Pegasus Town Ltd v Wong I would have been prepared to myself make an order

putting an end to the contract but, given that the application on notice referred to leave being granted to cancel the agreement, I proceed on that basis.

Orders

[9]      I order:

1.The order of this Court for specific performance dated 3 July 2009 is hereby discharged.

2.The judgment creditor is granted leave to cancel the agreement for sale and purchase dated 16 December 2008.

3.Leave is reserved to the judgment creditor to apply for an enquiry into damages following the cancellation of the agreement.

4.The debtor is to pay the costs of and incidental to this application and this order on a 2B basis together with disbursements to be fixed by the

Registrar.

Associate Judge Osborne

Solicitors:

M J Tingey, Bell Gully, Auckland (email –  [email protected]) R A Weir, PO Box 46281, Herne Bay, Auckland 1147