Stratton Properties Limited v Construction Properties Limited
[2023] NZHC 2666
•25 September 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2023-419-142
[2023] NZHC 2666
UNDER Part 12 of the High Court Rules 2016 IN THE MATTER OF
an agreement for specific performance of agreements for sale and purchase of land
BETWEEN
STRATTON PROPERTIES LIMITED
Plaintiff
AND
CONSTRUCTION PROPERTIES LIMITED
First Defendant
JEFFREY WILLIAM DE LEEUW
Second Defendant
Hearing: 5 September 2023 Counsel:
M Talbot for the Plaintiff
D O’Neill for the Defendants
Judgment:
25 September 2023
JUDGMENT OF ASSOCIATE JUDGE BRITTAIN
This judgment was delivered by me on 25 September 2023 at 1 pm.
Pursuant to Rule 11.5 of the High Court Rules.
…………………..
Registrar/Deputy Registrar
Solicitors/Counsel:
Braun Bond and Lomas, Hamilton Riverbank Chambers, Hamilton
STRATTON PROPERTIES LTD v CONSTRUCTION PROPERTIES LTD [2023] NZHC 2666
[25 September 2023]
Introduction
[1] The plaintiff, Stratton Properties Limited (Stratton) is a land development company. It developed a subdivision at 142–150 Abergeldie Way, Cambridge (the subdivision). The defendant, Construction Properties Limited (CPL), is a company controlled by Jeffery De Leeuw. CPL purchases land for a related company, R G de Leeuw Construction Limited, which trades as GJ Gardner Homes Waikato.
[2] On 3 March 2022, CPL signed agreements for sale and purchase of land to purchase five lots in the subdivision, Lots 8 to 12 (the S&P agreements). Settlement was due to occur on 16 May 2023. However, the day before settlement, CPL purported to cancel the S&P agreements, alleging that it had entered into the agreements as a result of misrepresentations regarding the quality of the subdivision.
[3] In this proceeding, Stratton seeks an order that CPL specifically perform the S&P agreements. Stratton has applied for summary judgment. CPL relies on its cancellation of the S&P agreements.
[4] Mr de Leeuw signed the S&P agreements on behalf of CPL. Each of the agreements included a clause which imposed obligations on Mr de Leeuw as guarantor of CPL’s obligations. Stratton accepts that it has no right to an order requiring Mr de Leeuw to specifically perform the agreements, but nonetheless seeks judgment confirming Mr de Leeuw’s liability as guarantor. Mr de Leeuw advances the same defence as CPL.
Background
[5] Mr de Leeuw has sworn an affidavit on behalf of CPL. In his affidavit, he confirms an involvement in “purchasing land at scale and developing land” for over fifteen years and describes GJ Gardner Homes as the largest residential construction company in the Waikato.
[6] On 21 February 2022, Stratton’s sales manager, Timothy Batters, emailed Mr de Leeuw a copy of the plan for Stage 1 of the subdivision, which comprised thirty
lots including the five that CPL ultimately agreed to purchase. All lots in Stage 1 of the subdivision were 400 m² in size, or very close to that.
[7] Mr Batters has affirmed an affidavit on behalf of Stratton. He says that at the time of the negotiation of the S&P agreements, the plans for Stage 2 of the subdivision had not been finalised. Stage 2 was not depicted on the plan sent to Mr de Leeuw. Stage 2 was to be developed on land across the road from Lots 8 to 12 purchased by CPL. The road was depicted on the plan. Mr Batters’ email on 21 February 2022 noted that Stages 2 and 3 would be “coming up soon”.
[8]Later the same day, Mr de Leeuw sent an email to Mr Batters, stating:
… I will commit to buying lots 8–12 inclusive. Settlement on title issuance. No Due Diligence. Unconditional.
Mr de Leeuw offered to provide Mr Batters with “feedback” on Stages 2 and 3 of the subdivision.
[9] Mr Batters says that, at the time, all people were interested in was securing land because there was a lack of it. That is consistent with Mr de Leeuw’s enthusiasm for the transaction evident from his email on 21 February 2022.
[10] Messrs de Leeuw and Batters agree that they discussed the subdivision before CPL signed the S&P agreements. There is, however, a dispute regarding what was said by each party. I will return to that issue.
[11] On 23 February 2022, Mr de Leeuw sent Mr Batters an email confirming that he had signed the S&P agreements, to be sent back to Stratton by CPL’s solicitor. Mr De Leeuw noted:
Please be aware and point out to the Guys that I have amended the Sunset clause to be for Purchaser benefit only, not joint. I am sure you will understand why …
[12]The S&P agreements each included, inter alia, the following clauses:
20DEFINITION AND INTERPRETATION
20.1In this agreement, unless the context otherwise requires:
“Development” means the staged subdivision of the Land into fee simple titles generally as shown on the Scheme Plan.
“Scheme Plan” means the plans showing the proposed subdivision of the Land into fee simple lots as attached.
“Land” means all the land being Lot 2 DPS 12179 and Sections 7 and 16 SO 502072 contained in records of title SA8C/505, 984913 and 984914 (South Auckland Registry).
“Stage” means each and all stages of the subdivision as recorded on the Scheme Plan and approved in the Consents.
“Property” means [the Lot] being purchased pursuant to this agreement as more specifically recorded on the front page of the agreement.
“Consent” means any consent necessary to complete the vendor’s Development and includes all variations to and consents issued in addition to or substitution for those consents.
…
23SUBDIVISION
23.1The vendor may at its election complete the Development in Stages.
23.2The vendor will at its cost and with all reasonable speed and diligence;
(a)Undertake all work and do all things necessary to enable the Survey Plan for the Stage of which the Property forms part to be deposited with LINZ;
(b)Arrange for the Survey Plan for the Stage of which the Property forms part to be deposited with LINZ and for a separate record of title for the Property to be issued.
23.3The purchaser acknowledges that currently it is intended all Stages will be completed however the purchaser acknowledges the vendor is not obliged to complete all Stages of the Development and the vendor expressly reserves the right to make such changes to the Consent as it thinks necessary or desirable and the purchaser will have no claim against the vendor in respect of such changes.
…
32LIMITATIONS OF LIABILITY
32.1The purchaser agrees that this agreement together with any consents contain the entire agreement between the parties, despite anything contained in any brochure, illustration, report, advertisement or other documents. The purchaser agrees that the vendor and its agents have made no representations or warranties in regard to the Property upon which the purchaser relies other than those contained in this
agreement and the purchaser has entered into this agreement solely in reliance on its own judgment.
32.2The purchaser agrees that the vendor and its agents shall not be responsible in any way for the correctness or completeness of any advertising or promotional material which the purchaser may have received or any statements by the vendor or any agent of the vendor.
33SALE OF LOTS
33.1The purchaser will not object (and waives any right to do so) to methods employed by the vendor in an endeavour to sell other Lots forming part of the Development or any future development of adjoining land, including, without limitation, as to the use of signs, provided that the vendor does not cause unreasonable interference to the comfort and convenience of the purchaser or its invitees and their use and enjoyment of the Property.
[13]On 6 April 2022, Mr Batters sent an email to Mr de Leeuw, stating:
A quick reminder to cast your eyes over the stage 2 plan and get back to me before [I] start to market.
[I’ll] send you through an update on stage 1 after I chat with the boys this arvo.
[14] The email chain confirms that Mr de Leeuw did not reply until 25 July 2022, when he sent an email to Mr Batters noting that he was about to go to a sales meeting to discuss house and land packages. For the purposes of that meeting, Mr de Leeuw asked for confirmation of how many sections were unsold in Stage 1 and the lowest price achieved for a site in Stage 1. Mr Stratton replied the same day, advising that four sections in Stage 1 were unsold and that all sections sold for $500,000, except for Lots 13 and 14.
[15] On 21 February 2023, Mr de Leeuw sent an email to Mr Batters seeking an update on the progress of the transaction and the general state of the subdivision. Mr de Leeuw said:
As you can imagine, we are reflecting on our strategy for selling our sites in the subdivision including the sale values.
In an effort to help me out, I would appreciate your comments as to the following.
·What sites are still available for sale?
·What is your proposed mechanism for selling any remaining sites?
·What indications have you been given by existing build partners to their sales strategy, pricing, and settlement terms with you?
I will really appreciate your honesty and openness. Many thanks, I look forward to your reply.
[16] On 26 February 2023, Stratton’s director, Ryan Mason, sent a reply email to Mr de Leeuw, stating:
223 is completed, we are waiting on sign off for 224 from council current timelines: Titles are expected end of March.
We have 23/30 unconditional, mainly the back sites are still available at the moment. As you are aware the market has softened, we do have some interest and hope to move these on as soon as possible. We have had meetings to list the remaining sites with agents to increase marketing exposure and gain more interest.
Settlement terms haven't changed; on title as per all of our agreements.
We arent 100% privy to all of our clients sales strategies but some of them have been doing regular open homes out on site, site signs on site and we see a lot of marketing on the likes of Trademe/Real-estate etc. Their pricing is sitting around the 950K–1.050M mark.
Hope this answers all of your queries please let me know if there is anything else we can help you with.
[17] Mr de Leeuw says that in late March 2023, he learned that house and land packages in Stage 2 were being marketed by Lugtons Real Estate for $800,000 including GST. Mr de Leeuw says at some point, he does not say when, Mr Mason told him that Stage 2 properties were going to be duplexes on half sites.
[18] On 16 March 2023, Waipa District Council granted a subdivision consent, SP/0163/22, for Stage 1A (formerly part of Stage 2), comprising a compact housing development of twelve lots immediately across the road from Lots 8 to 12 purchased by CPL. Mr Mason candidly acknowledges that Stratton was struggling to sell sections, which led to the idea of a compact housing development.
[19] The subdivision consent refers to a prior consent, SP/0016/22, which included Lots 31 to 36. The proposed Lots 31 to 36 from Stage 2 were split to create twelve lots as part of the compact housing development under resource consent SP/1063/22.
[20] The scheme plan for Stage 1A approved by Waipa District Council shows the twelve lots and the footprint of six sets of mirror imaged houses. On one boundary, the houses are very close together. Mr de Leeuw describes the proposed houses as duplexes, although technically they are not because they do not share party walls. The specific house design for each of the twelve lots forms part of the approved conditions of the consent for a compact housing development.
[21] For example, Lot 201 in Stage 1A is approximately 211 m² in area. Lot 201 has been marketed as a house and land package with a price of $800,000. The marketing refers to the proposed dwelling as “architecturally designed” and “high- spec”.
[22] Mr Mason says that Stratton was marketing the sections in Stage 1A as part of a house and land package, on the basis that Stratton would sell the section and an independent building company, Apex Building, would enter into a separate agreement with the purchaser to construct the dwelling. Mr Mason says that, in addition to the Council approved compact housing designs, there are restrictive covenants to ensure build quality is not compromised.
[23] Mr de Leeuw says that the nature of this compact housing development across the road from the lots that CPL has purchased “cheapens the subdivision and does not commit to the price quality that … was assured”.
[24] That led to CPL purporting to cancel the S&P agreements on 15 May 2023, a day before settlement was due. The notice of cancellation raised the alleged misrepresentation for the first time.
[25] There is presently no evidence of what is planned for the proposed subdivision of the balance of the land in Stage 2, either under SP/0016/22 or any subsequent proposal from Stratton.
Legal principles
Summary judgment
[26] The Court may give judgment against a defendant if satisfied that the defendant has no defence to a cause of action in the statement of claim.
[27] The leading authority on applications for summary judgment is Krukziener v Hanover Finance Ltd.1 The Court of Appeal set out the following principles:2
(a)The question on a summary judgment application is whether the defendant has no defence to the claim; that is, there is no real question to be tried. The Court must be left without any real doubt or uncertainty.
(b)The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated.
(c)The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as, for example, where the evidence is not consistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable. In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it.
[28] The defendant is under an obligation to lay a proper foundation for the defence in the affidavits filed in support of the notice of opposition.3
1 Krukziener v Hanover Finance Ltd [2008] NZCA 187, (2008) 19 PRNZ 162.
2 At [26].
3 Middleditch v New Zealand Hotel Investments Ltd (1992) 5 PRNZ 392 (CA) at 394.
Pre-contractual misrepresentation
[29]Section 37 of the Contract and Commercial Law Act 2017 (CCLA) provides:
37Party may cancel contract if induced to enter into it by misrepresentation or if term is or will be breached
(1)A party to a contract may cancel it if—
(a)the party has been induced to enter into it by a misrepresentation, whether innocent or fraudulent, made by or on behalf of another party to the contract; or
(b)a term in the contract is breached by another party to the contract; or
(c)it is clear that a term in the contract will be breached by another party to the contract.
(2)If subsection (1)(a), (b), or (c) applies, a party may exercise the right to cancel the contract if, and only if,—
(a)the parties have expressly or impliedly agreed that the truth of the representation or, as the case may require, the performance of the term is essential to the cancelling party; or
(b)the effect of the misrepresentation or breach of the contract is, or, in the case of an anticipated breach, will be,—
(i)substantially to reduce the benefit of the contract to the cancelling party; or
(ii)substantially to increase the burden of the cancelling party under the contract; or
(iii)in relation to the cancelling party, to make the benefit or burden of the contract substantially different from that represented or contracted for.
(3)Subsection (1) is subject to the rest of this subpart, but does not limit section 36.
[30] The requirement in s 37(2)(a), that the truth of the representation is essential to the cancelling party, can be implied. This requires a careful consideration of whether the cancelling party would, more probably than not, have declined to enter into the contract if the truth had been known.4 The inquiry is necessarily based on an objective appraisal; what a party may have unilaterally said about its intentions is irrelevant.5
4 Mana Property Trustee Ltd v James Developments Ltd [2010] NZSC 90, [2010] 3 NZLR 805 at [25].
5 Mana Property Trustee Ltd v James Developments Ltd, above n 4, at [25].
[31] The requirement in s 37(2)(b), of a substantial reduction in the benefit of the contract to the cancelling party, must be considered on the facts of the case having regard to the nature of the contract, its subject matter and to all the circumstances of the case.6
[32]Section 50 of the CCLA provides:
Statement, promise, or undertaking during negotiations
(1)This section applies if a contract, or any other document, contains a provision purporting to prevent a court from inquiring into or determining the question of—
(a)whether a statement, promise, or undertaking was made or given, either in words or by conduct, in connection with or in the course of negotiations leading to the making of the contract; or
(b)whether, if it was so made or given, it constituted a representation or a term of the contract; or
(c)whether, if it was a representation, it was relied on.
(2)The court is not, in any proceeding in relation to the contract, prevented by the provision from inquiring into and determining any question referred to in subsection (1) unless the court considers that it is fair and reasonable that the provision should be conclusive between the parties, having regard to the matters specified in subsection (3).
The matters are all the circumstances of the case, including—
(a)the subject matter and value of the transaction; and
(b)the respective bargaining strengths of the parties; and
(c)whether any party was represented or advised by a lawyer at the time of the negotiations or at any other relevant time.
[33] Section 50 can ameliorate the effect of so-called “exclusionary clauses”, a class of contractual clauses which seek to limit or exclude liability for misrepresentations. Exclusionary clauses go to the issue of inducement in s 37(1)(a), expressed as reliance in s 50(1)(c).
6 Jolly v Palmer [1985] 1 NZLR 658 (HC) at 662; and MacIndoe v Mainzeal Group Ltd [1991] 3 NZLR 273 (CA) at 284–285.
[34] Exclusionary clauses in commercial contracts are not inherently unfair and must be considered in context.7 In Brownlie v Shotover Mining Ltd,8 the Court of Appeal upheld a clause that excluded liability for pre-contractual representations. McKay J said:9
… It is highly desirable that written contracts should be so drawn as to state all the terms of the intended contract, and so avoid the uncertainties which can arise from allegations of verbal representations or collateral warranties. If parties have not agreed to include express warranties in their written contract, then it is reasonable for them to state expressly that verbal warranties are excluded. Other matters relevant under [s 4(1) of the Contractual Remedies Act 1979] in determining whether it is fair and reasonable to enforce the clause include “all the circumstances of the case”. This was a commercial contract between commercial parties each with separate legal advice. The subject matter and the value of the transaction were sufficiently substantial to justify the expectation that each party would be familiar with its terms and intended to be bound by them. The respective bargaining strengths of the parties would not justify any special indulgence to either. Both parties were represented and advised by the solicitors at the relevant time.
[35] Exclusionary clauses have been upheld in agreements for sale and purchase of real estate, including in a case where the vendor successfully obtained summary judgment against the purchaser for specific performance.10
Fair Trading Act 1986
[36]Section 9 of the Fair Trading Act 1986 (FTA) provides:
9 Misleading and deceptive conduct generally
No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
[37] Generally, to succeed in a claim for relief for breach of s 9, it must be established that there was misleading or deceptive conduct, for example involving a misrepresentation, and that there is a direct causal link between the contravening conduct and the loss or damaged suffered.11
7 PAE (New Zealand) Ltd v Brosnahan [2009] NZCA 611, (2009) 10 TCLR 626 at [24].
8 Brownlie v Shotover Mining Ltd CA181/87, 21 February 1992.
9 At 31–32.
10 Mayoral Drive Trustee Co Ltd v Lal HC Auckland CIV-2007-404-1902, 26 October 2007.
11 Fair Trading Act 1986, s 43.
[38] Liability under the FTA cannot be excluded by contract.12 However, a Court may have regard to an exclusionary clause in determining whether a party relied on a representation, and if so, whether that reliance was reasonable and causative of loss.13
Discussion
The claim against CPL
[39] Mr de Leeuw’s affidavit evidence outlining the alleged misrepresentation is brief, and I repeat it in full:
8.The enquiry I made of Tim Batters with regard to build quality and price quality related to ensuring that the prices of other lots in the subdivision were going to remain at a high and consistent level. If they were, that meant that there was going to be a series of high quality, high value builds and that ensured that the quality of the subdivision was kept up.
9.I was unequivocally assured by Mr Batters that price quality was important to [Stratton] and [that Stratton] would commit to maintaining high prices of all Lots sold in the subdivision. Whilst Mr Batters could not commit to build quality by 3rd party builders, his assurance about the price of Lots meant the house and land packages would be priced at the higher value end of the market.
[40] Mr de Leeuw does not state whether the alleged assurances related solely to Stage 1, or included Stages 2 or 3. His comments are capable of being construed as a reference to the entire subdivision, and I approach the case on that basis.
[41] The comments made by Mr de Leeuw about “build quality” are not statements attributed to Mr Batters. The only statements attributed to Mr Batters were limited to the prices of sections.
[42] Mr Batters says that he had only one conversation with Mr de Leeuw before contracting. He says:
… Mr de Leeuw asked me what the sections had sold and were selling for, and I told him all had sold for $500,000 and all other lots under contract were for
$500,000 as well. At that time, I think there were around five lots remaining to be sold.
12 Fair Trading Act, s 5C.
13 PAE (New Zealand) Ltd v Brosnahan, above n 7, at [46].
Mr Batters says that his comments did not relate to Stage 2 (now Stage 1A).
[43] At this summary stage of the proceeding, it is not possible to resolve the conflict between the evidence of Mr de Leeuw and Mr Batters as to whether their discussion on prices was confined to Stage 1, or related to the entire subdivision, including Stages 2 and 3.
[44] Their discussion was in February 2022, and there is no evidence of the status of Stratton’s application for a subdivision consent for Stage 2 at that time. The application to divide six lots in Stage 2 into the compact housing development of twelve lots appears to have been filed in November 2022. In February 2022, Stratton may have been contemplating larger sized sections in Stages 2 and 3, similar to Stage 1.
[45] It is arguable that Stratton represented to CPL that Stage 2 of the subdivision, including the land immediately across the road from the lots in Stage 1 to be purchased by CPL, would contain sections of a similar value, and therefore size, to those being sold to CPL. That would amount to a representation regarding the quality of the sections in Stage 2.
[46] If Stratton made representations of that nature, then they are capable of being misrepresentations on the basis that Lots 1 to 12 in Stage 1A (formerly Stage 2) are approximately half the size of the lots in Stage 1 and part of a comprehensive housing development, with houses that have an appearance closely resembling duplexes.
[47] CPL has adduced limited evidence regarding the effect of the compact housing development on the value of the lots that CPA contracted to purchase. CPL’s registered valuer, Jeffrey Alexander, says that the proposed duplex style development opposite CPL’s lots would, in his view, have a significant negative impact on the value of CPL’s lots. No specifics of value are given. Even so, Mr Alexander’s evidence is sufficient to discharge the evidential onus on CPL in respect of a substantial reduction in the benefit of the S&P agreements to CPL.
[48] Given my findings that it is arguable that Stratton made a misrepresentation, and that the misrepresentation substantially reduced the benefit of the contracts to CPL, then the critical issue is inducement and the effect of the exclusionary clauses in the contract.
[49] In my view, the exclusionary clauses in the contract should be given effect for the following reasons:
(a)CPL and its director, Mr de Leeuw, are experienced purchasers of development land;
(b)Mr de Leeuw reviewed the S&P agreements, including the special conditions added to the standard REINZ/ADLS form;
(c)Mr de Leeuw removed the due diligence clause which was for CPL’s advantage, and amended the sunset clause for the issue of titles so that the clause was solely for the benefit of CPL;
(d)there was no disparity in the bargaining strength of the parties;
(e)CPL was in receipt of legal advice;
(f)Mr de Leeuw’s email to Mr Batters on 21 February 2022 confirms that CPL was motivated to secure the lots and wished to be considered with favour as a purchaser of sections in the subsequent stages of the subdivision; and
(g)in that context, CPL settled on a contractual allocation of risk whereby CPL has no rights or ability to claim against Stratton as a result of how Stratton chose to develop Stages 2 and 3 of the subdivision.
[50] Clause 23.3 of the S&P agreements refers to “Stages of the Development”. Clause 20.1 defines “Development” as the staged development of the Land. “Land” is defined by reference to Records of Title, including the land in Stage 1A. Accordingly, cl 23.3 applies to Stage 1A.
[51] Clause 23.3 of the S&P agreements is decisive. CPL acknowledged that Stratton reserved the right to make changes to the subdivision consent, and Stratton was not obliged to complete all stages of the development.
[52] Clause 23.3 goes as far as to permit Stratton to sell the bare land intended for Stage 2 to a third party, who could potentially develop it in any way permitted by the applicable planning rules.
[53] The exclusionary clauses are consistent with cl 23.3, in that they prevent CPL from relying on any representation made by Stratton regarding whether, and how, Stage 2 would be developed.
[54] The terms of the S&P agreements are inconsistent with an implication of essentiality for any statement made by Stratton about its intention for the development of Stage 2.
[55] The terms of the contract are inconsistent with any inducement under s 37 of the CCLA, or any showing of causation required for a claim under s 9 of the FTA.
[56]CPL has no arguable defence to Stratton’s claim to enforce the contracts.
[57] Stratton seeks orders that CPL specifically perform the S&P agreements. However, special care is required where specific performance is sought on summary judgment. The exercise of the Court’s discretion to order specific performance may give rise to issues that are different to those that arise when considering whether an arguable defence exists in respect of liability.14
[58] I accept that at the agreed date of settlement, Stratton was ready, willing and able to settle the S&P agreements. In all the circumstances, I consider that an order that CPL now perform the S&P agreements is appropriate.
14 Hart v Bankfield Farm Ltd (2008) 9 NZCPR 685 (HC) at [39].
The claim against Mr de Leeuw
[59] Stratton accepts that it is not entitled to orders for specific performance against Mr de Leeuw in his capacity as a guarantor of the obligations of CPL. If CPL performs its obligations under the S&P agreements, then Stratton will have no need to enforce the guarantee. I am not prepared to enter summary judgment for liability alone, however, it is appropriate to grant leave to Stratton to seek further orders if CPL fails to comply with orders for specific performance.
Costs
[60] Stratton is the successful party and costs should follow the event. My preliminary view is that 2B costs are appropriate.
[61] If the parties cannot agree costs, then Stratton may file a memorandum as to costs, of no more than five pages by 6 October 2023. CPL may file a memorandum in reply, of no more than five pages, by 13 October 2023. I will then determine costs on the papers.
Orders
[62]I make the following orders:
(a)within 10 working days of this judgment, the first defendant shall specifically perform its obligations under the five agreements for sale and purchase of land dated 3 March 2022, in respect of Lots 8, 9, 10, 11 and 12 Abergeldie Way, Cambridge;
(b)the first defendant as purchaser shall pay to the plaintiff the balance required to complete settlement of the S&P agreements in terms of each of the S&P agreements, and the plaintiff shall perform its obligations under the S&P agreements;
(c)leave is reserved to the parties to seek further orders from the Court regarding the terms of settlement of the S&P agreements;
(d)if the first defendant fails to comply with these orders for specific performance, then leave is reserved to the plaintiff to seek further orders, including in respect of all remedies available to the plaintiff against the first and second defendants under the S&P agreements.
Associate Judge Brittain
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