Stone v Stone

[2025] NZHC 622

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2023-404-000869

[2025] NZHC 622

BETWEEN

REBECCA ANN STONE

Plaintiff

AND

DARRELL STONE

First Defendant

REBECCA ANN STONE, DARRELL STONE AND BRUCE KENNETH DELL as

Trustees of THE STONE FAMILY TRUST Second Defendant

Hearing:

10-12 February 2025

Appearances:

J W A Johnson, C Chung & S T Dymond for the Plaintiff

R D Butler, S C I Jeffs & P R Symonds for the First Defendant No appearance for the Second Defendant

Judgment:

24 March 2025

JUDGMENT OF TAHANA J

This judgment was delivered by me on 24 March 2025 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:

Holland Beckett Law, Tauranga Bankside Chambers, Auckland Tompkins Wake, Auckland

STONE v STONE [2025] NZHC 622 [24 March 2025]

Introduction

[1]    The parties were married and are now separated. They settled their relationship property issues and entered into a settlement agreement on 9 February 2022 (the Settlement Agreement). It is agreed they are now deadlocked in the implementation of the Settlement Agreement because they were unable to sell the family home at    St Heliers (the Property) at auction at the agreed reserve price.

[2]    Given that the parties have the same last name, I will refer to each of them by their first name to avoid confusion.

[3]    Ms Stone (Rebecca) claims the parties agreed that if the Property sells below the agreed reserve, Mr Stone (Darrell) will pay the shortfall to her and therefore the Settlement Agreement includes an implied term requiring the parties to proceed with a sale even if it is not by auction to achieve the best obtainable price. Rebecca claims that Darrell has breached that implied term and should now be ordered to proceed with the sale of the Property.

[4]    In his defence, Darrell says he had a mistaken belief that the Property was worth $2,580,000 based on a property valuation in 2021. Darrell claims that this mistaken belief entitles him to relief under the Contract and Commercial Law Act 2017 (the Act) and that the Court should order he and Rebecca share equally in any shortfall below the agreed reserve price.

[5]    The parties therefore disagree as to how the deadlock should be resolved. Either Darrell has breached an implied term to proceed with sale of the Property to achieve the best obtainable price or there has been a contractual mistake and relief should be granted to Darrell that requires each party to share the shortfall equally.

[6]The issues I need to determine are: Claim—breach of contract:

(a)Does the Settlement Agreement contain an implied term that:

(i)if the Property is not sold by way of auction, then Rebecca and Darrell would take all reasonable endeavours to obtain the best obtainable price through a sale method on advice from Barfoot and Thompson, including by way of negotiation; and

(ii)Rebecca and Darrell would agree to sell the Property at the best obtainable price, even if it is under the agreed reserve of

$2,600,000.

(b)If yes, has Darrell breached the implied term?

(c)If yes, should specific performance be ordered?

Affirmative defence—mistake:

(d)Is Darrell entitled to relief under the Act by reason of his alleged mistaken belief as to the Property’s value at the time of the Settlement Agreement?

Background

[7]    Rebecca and Darrell met in 2007, married in 2013 and separated in 2019. They share two children born in 2014 and 2016. During their marriage they lived in the Property.

[8]In 2018, the Property had been valued at $2,650,000 (the 2018 Valuation).

Seagars Valuation

[9]    After the separation, the parties jointly instructed Seagars to undertake a market valuation of the Property.

[10]   On 15 June 2021, Seagars valued the Property at $2,580,000 (the Seagars Valuation). Seagars indicated that in completing the valuation, a critical assumption was that the house was weathertight. Seagars undertook the valuation on the basis the

Property is subject to stigma associated with plaster clad homes of that era, whilst assuming that the dwelling was weathertight.

[11]   In light of the 2018 Valuation, on 30 June 2021 Darrell queried the Seagars Valuation noting that the house does not have monolithic cladding but is plaster clad with a cavity. Darrell requested that Seagars consider whether this had a material impact on its valuation.

[12]   Seagars responded indicating that monolithic cladding refers to any plaster clad system whether it has a cavity or not and that a cavity does not (in itself) completely mitigate moisture ingress. All such homes built before 2004 were subject to stigma. Seagars stood by its valuation and reiterated that it had valued the Property on the basis that it was watertight.

[13]   In September 2021 Rebecca’s solicitors raised with Darrell’s solicitors concerns about the deteriorating state of the Property. Darrell’s solicitors suggested Rebecca obtain a building report and two quotes for any remedial work required.

Building report

[14]   In October 2021 Rebecca received and passed onto Darrell’s solicitors a building report from house inspection specialists, “Better Inspect It” (the Building Report). The Building Report was based on a visual and non-invasive inspection of the Property and indicated that it was intended as a general guide to help the client evaluate the overall condition of the building. In summary, the Building Report identified weathertightness as a high level of concern where “caution and further investigation is strongly recommended”. The Building Report considered that the house has a number of “major defects” associated with it. In relation to the cladding, it opined that:

On the balance of probability it is likely that this cladding will leak if it is not detailed more effectively. We recommend the exterior envelope be further investigated by a weather tightness specialist.

[15]   Rebecca acknowledged that while she had contacted a couple of persons to look at the Property, she had not obtained any report or quotes for any remedial work.

Settlement Agreement

[16]   On 9 February 2022, Rebecca and Darrell attended a mediation and resolved their relationship property issues by entering into the Settlement Agreement. The settlement concerned the entirety of their relationship property pool which was valued at $10,495,641.39.

[17]   Under cl 10.2 the total sum Darrell agreed to pay Rebecca was $4,500,000 (the Settlement Sum). Under cl 10.3(c) $2,600,000 of the Settlement Sum was to come from the sale proceeds of the Property.

[18]   Clause 10.4 set out the process for sale of the Property. Rebecca, in consultation with Darrell, was to arrange for the sale as follows:

(a)Barfoot and Thompson (Barfoot) to be used as agents;

(b)the auction date was to be no later than the end of March 2022;

(c)the agreed reserve was $2,600,000 and was to remain confidential to the parties until needed for the auction;

(d)Darrell to pay all sale costs including marketing, real estate agent’s commission and legal (conveyancing) costs;

(e)if the Property sold for less than $2,600,000 then Darrell would pay Rebecca the difference between the sale price and the $2,600,000. If however, the net proceeds of sale were more than $2,600,000 any sum received would be shared equally between the parties; and

(f)Darrell would continue to pay rates, insurance, mortgage payments and necessary outgoings until the settlement of sale.

[19]The Settlement Agreement also included the following cl 24.3:

The parties acknowledge that they enter into this Agreement fully and voluntarily  from  their  own  information  and  investigations.  Each party

acknowledges and accepts the risk that they, their advisers, agents or lawyer may discover facts or principles of law different from, or in addition to, the facts and principles of law which they know or believe to be true with respect to the subject matters of this Agreement.

Attempts to sell the Property

[20]On 17 February 2022, Barfoot provided a market appraisal for the Property of

$2,250,000 to $2,550,000. Barfoot had considered the condition of the Property noting that “[t]he water ingress issue is another factor due to the unknown extent of the problem and the cost to rectify which potential buyers will take into consideration.” That appraisal records that the construction includes a treated timber frame.

[21]   On 23 February 2022, Barfoot indicated it was ready to instigate the auction campaign.

[22]   On 16 March 2022, Barfoot provided an update on the sale process reporting that potential buyers had provided price indications of around $1,800,000 to

$2,000,000, with buyers expressing interest being those who were looking for a reclad project. Barfoot had also engaged a builder who, after removing some plaster board, identified that the timber frame was not treated.

[23]   On 22 March 2022, Barfoot informed Darrell and Rebecca that there had been minimal response from the public and recommended they sell the Property by negotiation rather than auction. Darrell replied and agreed that the method of sale should be changed.

[24]   By 12 April 2022, Barfoot had received an unconditional offer of $1,950,000 and a conditional offer of $2,088,000. Darrell declined both offers because they were below the capital value of the land and below the agreed valuation of $2,580,000.

[25]   On 12 May 2022, Barfoot wrote to the parties requesting a written price indication to be able to inform buyers. Buyers had expressed frustration that Barfoot had not been able to provide any price indication.

[26]   Darrell’s solicitors wrote to Rebecca’s solicitors requesting her agreement to disclose the reserve price. In response, Rebecca’s solicitors referred to cl 10.4(e) which contemplated selling the Property for less. They proposed a price indication of

$2,200,000, however Darrell did not agree to provide a price indication below the agreed reserve price.

[27]On 20 June 2022, Barfoot wrote to Darrell and advised him that a price of

$2,600,000 was at least $500,000 more than what anyone in the market was prepared to pay. Barfoot recommended they either meet the market or remove the Property from the market and come to another mutual agreement.

[28]   On 30 June 2022, Darrell’s solicitors wrote to Rebecca’s solicitors proposing that if the net proceeds of sale were less than $2,600,000, any difference would be shared equally.

[29]   On 26 July 2022, Rebecca’s solicitors rejected that proposal and indicated they intended to file enforcement proceedings.

[30]   On 7 September 2022, Rebecca’s solicitors proposed that the Property remain on the market, if the net proceeds of sale were below $2,600,000 they were to be paid to Rebecca, and any shortfall would be subject to further agreement or Court order. Darrell’s solicitors eventually agreed with that proposal on 30 September 2022.

[31]   Barfoot then proceeded to prepare documentation for the auction of the Property. On 27 October 2022, Barfoot recommended, based on their appraisal, that a reserve range be adopted from $1,800,000 to $2,050,000. In response, Darrell indicated that he was not in a position to sign off the reserve but that the intent is to sell for the best price at auction.

[32]   On 31 October 2022, Rebecca’s solicitors wrote to Darrell’s solicitors noting that they had agreed to sell and deal with the dispute over shortfall later noting “the market does not appear to be improving and it is in both parties’ interest to sell despite the dispute”. Rebecca’s solicitors proposed they agree to a reserve of $2,050,000 subject to variation after feedback from open homes.

[33]   On 31 October 2022, Darrell’s solicitors indicated that Darrell had signed the agency agreement and they did not consider a reserve price needed to be provided to the agents and could be agreed on the day of auction.

[34]The Property remains unsold.

Claim—breach of contract

Does the Settlement Agreement contain an implied term?

[35]Rebecca’s position is that it is an implied term of cl 10.4 that:

(a)If the Property is not sold by way of auction, then Rebecca and Darrell would take all reasonable endeavours to obtain the best obtainable price through a sale method on advice from Barfoot and Thompson, including by way of negotiation; and

(b)Rebecca and Darrell would agree to sell the Property at the best obtainable price, even if it is under the agreed reserve of $2,600,000.

[36]   Before considering whether the Settlement Agreement contains the above implied term, I set out the relevant legal principles that apply when determining whether a term should be implied.

Applicable legal principles—implied terms

[37]   The leading decision is Bathurst Resources Ltd v L&M Coal Holdings Ltd,1 where the Supreme Court confirmed the continuing role of the Privy Council decision in BP Refinery (Westernport) Pty Ltd v Shire of Hastings,2 but qualified its application. In BP Refinery the Privy Council set out five factors relevant to implying terms into contracts:3

1      Bathurst Resources Ltd v L&M Coal Holdings Ltd [2021] NZSC 85, [2021] 1 NZLR 696 [Bathurst].

2      BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, (1977) 16 ALR 363 (PC) [BP Refinery].

3      At 376.

… for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that “it goes without saying”; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.

[38]   The Supreme Court in Bathurst considered that the above conditions should not be applied in a rigid and formulaic way,4 and set out the relevant principal points:5

(a)The legal test for the implication of a term is a standard of strict necessity, a high hurdle to overcome.

(b)The starting point is the words of the contract. If a contract does not provide for an eventuality, the usual inference is that no contractual provision was made for it.

(c)While the task of implication only begins when the court finds that the text of the contract does not provide for the eventuality, the implication of a term is nevertheless part of the construction of the written contract as a whole. An unexpressed term can only be implied if the court finds that the term would spell out what the contract, read against the relevant background, must be understood to mean.

(d)As with the task of interpreting a contract, the inquiry for the court when considering the implication of a term is an objective inquiry – it is the understanding of the notional reasonable person with all of the background knowledge reasonably available to the parties at the time of contract that is the focus of this assessment. The court is tasked with the role of constructing the understanding of that reasonable person.

(e)Thus, the implication of a term does not depend upon proof of the parties’ actual intentions, nor does it require the court to speculate on how the actual parties would have wanted the contract to regulate the eventuality if confronted with it prior to contracting.

(f)The BP Refinery conditions are a useful tool to test whether the proposed implied term is strictly necessary to spell out what the contract, read against the relevant background, must be understood to mean. Whilst conditions (4) and (5) must always be met before a term will be implied, conditions (1)–(3) can be viewed as analytical tools which overlap and are not cumulative. The business efficacy and the “so obvious that ‘it goes without saying’” conditions are both ways, useful in their own right, of testing whether the implication of a term is strictly necessary to give effect to what the contract, objectively interpreted by the court, must be understood to mean.

[117]   We see this approach to the implication of terms as aligning with the objective theory of contractual interpretation. It promotes the primacy of the

4      Bathurst, above n 1, at [108].

5      At [116] to [117].

words of the contract, while also seeking to reach a complete understanding of what the contract, read against the relevant background, must be understood to mean. By excluding speculation as to how the actual parties would have wanted the contract to regulate an unforeseen eventuality, this approach treats as irrelevant (and unreliable) evidence of subjective intent, given with the benefit of hindsight. It thereby promotes the efficient and just conduct of proceedings.

(footnotes omitted)

[39]   It is therefore necessary to apply the above principles. I start by considering the express terms of the Settlement Agreement.

Express terms of Settlement Agreement

[40]   The Settlement Agreement prescribes the sale process for the Property, as follows:6

(a)Barfoot and Thompson to be used as agents;

(b)the auction date to be no later than the end of March 2022;

(c)the agreed reserve to be $2,600,000 and was to remain confidential to the parties until needed for the auction; and

(d)Darrell to pay all sale costs including marketing, real estate agent’s commission and legal (conveyancing) costs.

[41]   The Settlement Agreement then prescribes what is to happen if the sale achieves a price lower or higher than the reserve:7

If Rarangi Road sells for less than $2,600,000 then Darrell shall pay to Rebecca the difference between the sale price and the $2,600,000. If however, Rarangi Road sells for more than $2,600,000 (net) any sum received (in terms of net proceeds of sale) shall be shared equally between the parties.

[42]   Counsel for Darrell argue that the parties did not contemplate a sale price significantly below $2,600,000 because they agreed to the reserve price based on the

6      Settlement Agreement, cl 10.4(a) to (d).

7      Clause 10(e).

Seagars Valuation. While the Seagars Valuation is obviously the basis for the reserve price, I do not agree that the parties did not contemplate a lower price when cl 10.4(e) clearly prescribes the consequences if the price is lower.

[43]   Clause 10.4 needs to be interpreted in the context of the overall Settlement Agreement which recorded the settlement of the division of a relationship property pool valued at $10,495,641.39. Of that value, Darrell was to pay to Rebecca’s trust the Settlement Sum of $4,500,000 (approximately 43 per cent).8 Of that Settlement Sum, $2,600,000 was to be paid from the proceeds of the sale of the Property.9

[44]   When viewed in that context, cl 10.4(e) indicates an intention to ensure that Rebecca receives the $2,600,000 agreed as part of the total Settlement Sum that Darrell agreed to pay under cl 10.2.

[45]   The express terms do provide for the eventuality that the Property would be sold for less than $2,600,000. The question is whether the Court should imply a term that requires the parties to proceed with the sale if it does not sell at auction or at the agreed reserve price.

[46]   Counsel for Darrell argue that the proposed implied term is inconsistent with the express terms and overall structure of the Settlement Agreement, referring to the agreed sale process.

[47]   The agreed sale process clearly contemplates a sale by auction which the parties sought to implement. The express terms do not however, specify a sale process if a sale by auction is not achieved. To that extent, the proposed implied term is consistent with the express term. It only applies because the sale by auction failed to result in the Property being sold.

8      Settlement agreement, cl 10.2.

9      Clause 10.3(c).

Is the proposed implied term too uncertain?

[48]   Darrell’s counsel also argue that the implied term is too uncertain and requires the parties to cooperate, contrary to the specified sale process which required a sale by auction with a $2,600,000 reserve.

[49]   The proposed implied term requires the parties to take “all reasonable endeavours” to obtain “the best obtainable price” through a “sale method on advice from Barfoot”.

[50]   The concept of “reasonable endeavours” is not uncertain or a stranger to contract law. The courts are familiar with interpreting its meaning.10 It imposes an objective obligation on each party that can be measured.

[51]   Darrell’s counsel also argue that the use of “best obtainable price” does not remove uncertainty because it requires the parties to agree. Counsel for Darrell acknowledge a similar term is used in the context of a mortgagee’s duty to “obtain the best price reasonably obtainable as at the time of sale” under s 176 of the Property Law Act 2007, but say that this is not analogous because Darrell and Rebecca agreed on a reserve price and the implied term should not give one party control over the sale process.

[52]   The implied term does not give one party control. It sets an objective standard by which the parties are required to comply so that the Property will be sold. It was not in the parties’ contemplation that they would retain the Property until a price of

$2,600,000 was achieved which is the effect of Darrell’s argument that the reserve price is material and binding. If that was correct, Darrell would never have agreed to pay a shortfall as the clause would have no effect if Darrell can effectively refuse any price below $2,600,000.

[53]   The best obtainable price does not require the parties to agree, it requires the parties to use all reasonable endeavours so that the house can be sold at the best

10 Quentin Lowcay “Best Endeavours and Reasonable Endeavours” [1999] NZLJ 211. This article examines the courts’ consideration of the obligation to use best endeavours or reasonable endeavours.

obtainable price in the market. I do not accept that the proposed implied term gives one party control. Both parties are required to use all reasonable endeavours and to adopt a sale method on advice from Barfoot. If those requirements are met, the price will likely be the best obtainable price.

[54]   I consider that a reasonable person with all the background knowledge reasonably available at the time of the Settlement Agreement, would have understood that the parties had agreed to sell the Property and had agreed the consequences if the sale was above or below the agreed reserve price. The implied term is necessary because the parties failed to specify the sale process if the Property was unable to be sold at auction with a reserve price of $2,600,000. It must have been in the reasonable contemplation of the parties that the Property may not sell at auction for the agreed reserve price. Why else would they have agreed to specify what is to happen if there is a shortfall? The eventuality that is not contemplated in the Settlement Agreement is the sale process and obligations on each party if sale by the agreed methodology is not achieved.

[55]   It is necessary to give efficacy to the Settlement Agreement to imply an obligation on both parties to proceed to sell the Property at the best obtainable price on the advice of a real estate agent. That obligation is not uncertain and nor does it require ongoing agreement between the parties if they are both required to act with reasonable endeavours and on the advice of Barfoot.

Is the proposed term reasonable and equitable?

[56]   I consider that the implied term is reasonable and equitable because it gives effect to the agreement that Darrell pay the Settlement Sum of $4,500,000. When viewed in the context of the overall settlement, even a decrease in the value of the relationship property pool by $500,000 would still result in Rebecca receiving 47 per cent of the overall value of the relationship property pool. That is reasonable and equitable.

[57]   Counsel for Darrell argued that the implied term is not fair because Rebecca has been living rent free in the Property. Under cl 10.4(f) Darrell agreed to pay outgoings for the Property until settlement of sale. Settlement of sale likely would not

have been delayed if Darrell had agreed to accept a price lower than $2,600,000. Darrell cannot allege the implied term is inequitable because of such delays while at the same time contributing to those delays. Further, the evidence indicates that the parties had agreed to proceed with a sale with the issue of who pays any shortfall being resolved separately. Had that occurred, Rebecca would no longer be residing in the house.

[58]   In circumstances where the implied term requires that both parties “take” (or use) all reasonable endeavours to obtain the best obtainable price through a sale method on advice of Barfoot, I reject the submission that Rebecca’s interests are such that they could frustrate that objective. The implied term requires Rebecca to act with all reasonable endeavours and on the advice of Barfoot. This is not an agreement to agree. Both parties have obligations. There is an objective standard against which those obligations can be measured (reasonable endeavours and best obtainable price) and there is an independent party (Barfoot) who has the expertise to know how to obtain the best obtainable price in the market.

Conclusion—implied term

[59]   For the reasons above, I reject the submission that the implied term is unrealistic or uncertain.

[60]   I accept however, that the wording of the proposed implied term could be more clearly articulated as follows:

(a)If the Property is not sold by way of auction, Rebecca and Darrell must use all reasonable endeavours to obtain the best obtainable price for the Property through a sale method on advice from Barfoot and Thompson; and

(b)The parties agree that the best obtainable price may be less than

$2,600,000.

Did Darrell breach the Settlement Agreement?

[61]   I consider that by refusing to agree to proceed to sell the Property at a reserve price (or with a price indication) below $2,600,000 Darrell has not used all reasonable endeavours to obtain the best obtainable price and has breached the Settlement Agreement.

Should the Court order specific performance?

[62]   It is appropriate that specific performance be ordered so that both parties can move forward and achieve a final resolution of their relationship property issues.

Is Darrell entitled to relief for his mistaken belief?

[63]   Darrell alleges that in entering the Settlement Agreement he had a mistaken belief that the Property was worth $2,580,000 based on the Seagars Valuation. Darrell relies on s 28 of the Act in seeking relief for this mistaken belief.

[64]   The court may grant relief under s 28 if, under s 24, the Court has power to grant relief. Under s 24, the court may grant relief if in entering into the Settlement Agreement:11

(a)Darrell was influenced in his decision to enter the Settlement Agreement by a mistake that was material to him, and the existence of the mistake was known to Rebecca; and

(b)The mistake resulted, at the time of the Settlement Agreement in an obligation being imposed that was, in all the circumstances, substantially disproportionate to the consideration for the obligation; and

(c)where the Settlement Agreement expressly or by implication provides for the risk of mistakes, Darrell is not obliged by a term of the

11     Contract and Commercial Law Act 2017, s 24(1).

Settlement Agreement to assume the risk that his belief about the matter in question might be mistaken.

[65]   Darrell says that at the time of the settlement he believed that the value of the Property was at least $2,580,000 as per the Seagars Valuation and that this belief was mistaken because the actual value was substantially less.

[66]   The Court of Appeal has confirmed in Weine v Tadd Management Ltd that a mistaken belief excludes cases where the parties are aware that the factual situation is uncertain and information imperfect.12 I consider that this case falls squarely within this exception. The Seagars Valuation was provided on the clear assumption that the house was weathertight. That assumption then became uncertain after the Building Report raised weathertightness as a high risk, considering that it was more likely than not that the cladding will leak if it is not detailed more effectively. The Building Report recommended the exterior envelope be further investigated by a weathertightness specialist. That did not happen.

[67]   At the time of the settlement, Darrell therefore knew about the Building Report and he admitted that he received legal advice about the Building Report. He accepted under cross-examination that in relation to the weathertightness issues as identified in the Building Report he “didn’t know the situation. We had, had no information.” Darrell also knew that there was the possibility that repairs could be significant and expensive. In those circumstances, he knew the weathertightness of the house was uncertain and the information imperfect. Further information would be required by a weathertightness expert before there was any certainty. The Seagars Valuation was therefore provided based on an assumption that was uncertain. That cannot therefore give rise to a mistaken belief that the Seagars Valuation was an accurate valuation as at the date of the Settlement Agreement which was some seven months after the valuation and when Darrell was aware of the findings of the Building Report.

[68]   I am not therefore satisfied that Darrell has established there was a mistaken belief.

12     Weine (as trustees of the Ruth Weine Family Trust) v Tadd Management Ltd [2024] NZCA 323, [2024] NZCCLR 529 at [53].

[69]   Further, cl 24.3 of the Settlement Agreement indicates that Darrell entered into it accepting the risk that he may discover facts that he did not know at that time (which would include the fact that weathertightness issues may in fact require repairs that are significant and expensive, which in turn may impact the value of the Property). That is a risk he assumed.

[70]   The Court cannot ignore the Court of Appeal’s decision in Weine and craft relief that Darrell is not entitled to receive. In the absence of a mistaken belief, the Court cannot grant Darrell the relief he seeks under the Act.

Result

[71]   For the reasons stated above, I find that Darrell has breached the Settlement Agreement and I therefore order specific performance requiring Darrell to comply with the following implied term:

(a)If the Property is not sold by way of auction, Rebecca and Darrell must use all reasonable endeavours to obtain the best obtainable price for the Property through a sale method on advice from Barfoot and Thompson; and

(b)The parties agree that the best obtainable price may be less than

$2,600,000.

[72]   Leave is granted for either party to apply to the Court on five working days’ notice for any resolution of a dispute in relation to the above order including, if necessary, any orders as to the timing of payment of any shortfall.

[73]   I decline to grant interest pursuant to ss 9, 20 or 22 of the Interest on Money Claims Act 2016 as I have not made any orders that require Darrell to pay money to Rebecca.

[74]   I decline to grant any relief to Darrell under the Contract and Commercial Law Act 2017.

Costs

[75]   Rebecca has been successful in her claim. My preliminary view is that she is entitled to costs. If the parties are unable to agree costs, Rebecca is to file a costs memorandum within 15 working days of the date of this judgment and Darrell is to file a cost memorandum within a further ten working days thereafter. The issue of costs will then be dealt with on the papers.

Tahana J