Station Properties Ltd (in rec) v Kumar - [2012] NZHC 1527

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-354 [2012] NZHC 1527

BETWEEN STATION PROPERTIES LIMITED (IN RECEIVERSHIP)
Plaintiff

ANDVIKRAM KUMAR AND NIRUPAMA KUMAR
Fourth Defendants

ANDROBERT JAMES SELWYN Fifth Defendant

ANDMICHAEL DONALDSON AND PATRICIA BRONWYN DONALDSON Sixth Defendants

Hearing: 12, 13, 14, 15, 16 and 20 September 2011
Supplementary submissions: 27 September 2011

Appearances: J Cooper and S East for Plaintiff
R Kelly and K Jarvis for Fourth, Fifth and Sixth Defendants

Judgment: 29 June 2012

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 29 June 2012 at 5:00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:
S East, Bell Gully, Auckland
Copy:
J Cooper, Barrister, Auckland
R Kelly, Barrister, Dunedin
K Jarvis, Barrister, Dunedin

STATION PROPERTIES LIMITED (IN RECEIVERSHIP) V KUMAR & ORS HC AK CIV-2009-404-354 [29
June 2012]

Table of Contents Paragraph

Number

Introduction [1] Terms used in this judgment [4] Factual background leading to contract [6] Subsequent events [23] Call for settlement, failure to settle [27] Pleadings [30] The plaintiff’s claim [30]

The defendants’ arguments [32]

What documents provided the terms of the contracts? [37]

Was there any effective distinction between acts done on behalf of SPL and acts done on behalf of the McEwan Group and Forum Select?

[38]

What documents and terms comprised the contracts? [46]

Conclusion as to what the contract comprised [75] What was the effect of the gazump clause? [76] Did the Settlement Date arrive? [87] Conclusion as to whether the Settlement Date arrived [112]

Was the plaintiff ready, willing and able to settle? [114] The sunset clause and the variation agreement [130] The affirmative defences [133] Outcome [140] Costs [143]

Introduction

[1] The plaintiff, Station Properties Limited (“SPL”), prior to its being placed in receivership, was the developer of a property know as Bowen View, an apartment complex in Queenstown. The defendants were all investors who entered into sale and purchase agreements to buy apartments in Bowen View.

[2] SPL called upon the defendants to settle the purchase of their apartments. They refused and the agreements have since been cancelled. SPL now seeks damages from the defendants in relation to the cancellation of those agreements and the resale of the apartments.

[3] This judgment deals with the liability of the defendants to SPL in damages. The proceedings as they relate to the other original defendants have been discontinued and those parties have taken no further part in this case.

Terms used in this judgment

[4] It will become clear that there is a fundamentally significant dispute between the parties as to what documents comprised the binding contract between them and, consequently, what the terms of the contract were. The plaintiff asserts that the terms of contract were confined to those set out in the sale and purchase agreement provided to each of the defendants under cover of a letter dated 20 September 2005. In the agreements they received, the defendants identified, by a hand-written insertion, the unit in the Bowen View…

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 Station Properties Ltd (in rec) v Kumar

Details

AGLC: Station Properties Ltd (in rec) v Kumar [2012] NZHC 1527
Case: [2012] NZHC 1527
Decision Date: 29 June 2012

CaseChat Overview and Summary

Station Properties Limited, prior to its being placed in receivership, was the developer of a property know as Bowen View, an apartment complex in Queenstown. The defendants were all investors who entered into sale and purchase agreements to buy apartments in Bowen View. SPL called upon the defendants to settle the purchase of their apartments. They refused and the agreements have since been cancelled. SPL now seeks damages from the defendants in relation to the cancellation of those agreements and the resale of the apartments. The court considered the legal issues which included whether the defendants entered into a binding obligation to purchase their respective units in the event that the plaintiff did not receive a matching or better offer from another potential purchaser; whether the plaintiff had obtained a valid certificate of practical completion in terms of the contract and whether the plaintiff was entitled to call on the defendants to settle; and whether the plaintiff was ready, willing and able to settle at the time it demanded settlement from the defendants. The court found that the defendants entered into a binding obligation to purchase their respective units in the event that the plaintiff did not receive a matching or better offer from another potential purchaser. However, the plaintiff had not obtained a valid certificate of practical completion in terms of the contract and was not entitled to call on the defendants to settle. In those circumstances, the cancellation of the contracts by the defendants in the face of repudiatory conduct by the plaintiff was effective. The plaintiff’s claim fails on that basis. In the alternative, the court found that the plaintiff was not ready, willing and able to settle at the time it demanded settlement from the defendants. On that ground also the defendants were, in the court’s view, entitled to refuse to settle and to subsequently cancel the contracts. The court dismissed the plaintiff’s claims and entered judgment for the defendants. The defendants were entitled to costs.

Orders