Taylor v Jaydee Home Solutions Limited - [2012] NZHC 167

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-423 [2012] NZHC 167

BETWEEN ALLAN SYDNEY TAYLOR AND ALEXANDER TAYLOR
Plaintiffs

ANDJAYDEE HOME SOLUTIONS LIMITED Defendant

Hearing: 27 January 2012 (Heard at Wellington)

Counsel: K. Smith - Counsel for Plaintiff
D. Marriott - Counsel for Defendant

Judgment: 16 February 2012 at 3:30 PM

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

This judgment was delivered by Associate Judge Gendall on 16 February 2012 at
3.30 pm under r 11.5 of the High Court Rules.

Solicitors: Peter C Gilbert, Solicitors, PO Box 2420, Wellington
Burton & Co, Lawyers, PO Box 8889, Symonds Street, Auckland

AS TAYLOR AND A TAYLOR V JAYDEE HOME SOLUTIONS LIMITED HC WN CIV-2011-485-423 16
February 2012

Introduction

[1] This is an application for summary judgment on a counter claim brought by the defendant as counterclaim plaintiff. In this application the defendant seeks an order for vacant possession of a residential property at 26 Donnelly Drive, Wainuiomata (the property). The property is owned by the defendant but is currently occupied by the plaintiffs under a long term Sale and Purchase Agreement between the parties.

[2] The defendant’s counterclaim is opposed by the plaintiffs, but the defendant maintains for the purposes of the present summary judgment application that the plaintiffs have no arguable defence to that counterclaim.

Background

[3] On 4 December 2002, the plaintiffs entered into a Sale and Purchase Agreement (―the Agreement‖) with the defendant to purchase the property. The purchase price was $105,0950.02. The plaintiffs were required to pay a deposit under the Agreement of $1,990.00 which was paid. The balance of the purchase price was to be paid in instalments over the following 30 years, in accordance with an Instalment Payment Schedule, appended to the Agreement. Each instalment was calculated to include provision for outgoings on the property as well as interest and part repayment of the principal sum outstanding.

[4] In June 2010, negotiations commenced between the parties to complete the sale early by bringing forward the final settlement date under the Agreement. Clause
11.4 of the Instalment Payment Schedule sets out the procedure for early settlement. However, no agreement was ever reached as to this early settlement due to a dispute between the parties over calculation of the final settlement price. In the meantime, the plaintiffs had ceased instalment payments, this occurring soon after they entered into these negotiations. The last payment under the Agreement was made to the defendant on 21 May 2010. The plaintiffs are now over 20 months in default under the Agreement.

[5] In February 2011, the defendant served a default notice on the plaintiffs under the Agreement and pursuant to ss 28 and 29 of the Property Law Act 2011.

The notice requested payment of arrears and reinstatement of future instalments due under the Instalment Payment Schedule. This request and the additional demands to resume payment, were not complied with. Accordingly, the defendant brings this present counterclaim action seeking an order for vacant possession of the property.

[6] The Agreement…

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.

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Details

Case: [2012] NZHC 167
Decision Date: 16 February 2012

CaseChat Overview and Summary

The case of Taylor v Jaydee Home Solutions Limited involves a dispute between Allan Sydney Taylor and Alexander Taylor (the plaintiffs) and Jaydee Home Solutions Limited (the defendant). The defendant has brought a counterclaim seeking an order for vacant possession of a residential property located at 26 Donnelly Drive, Wainuiomata. The property is owned by the defendant but is currently occupied by the plaintiffs under a long-term Sale and Purchase Agreement. The legal issues in this case revolve around the applicability of the defendant's right to terminate the Agreement and obtain vacant possession of the property due to the plaintiffs' default in making instalment payments as per the terms of the Agreement.

The court had to determine whether the plaintiffs had any arguable defence to the defendant's counterclaim. The defendant argued that the plaintiffs' failure to pay instalments since May 2010 constituted a default under the Instalment Payment Schedule, enabling the defendant to exercise the options outlined in clause 10.2 of the Schedule, which includes the right to obtain vacant possession of the property. The court noted that the statutory requirements of the Property Law Act 2007 must be fulfilled before a vendor can cancel a contract, especially when the purchaser is in possession of the property. The court found that the defendant had complied with the statutory requirements and that the Agreement was still in force, but it had not been validly rescinded or cancelled.

The court also considered the plaintiffs' defences, which included their assertion that they were now able to pay the instalment amounts specified in the default notice. However, the court found that the plaintiffs' subsequent ability to pay was not an arguable defence to the counterclaim. The court also rejected the plaintiffs' claim that they had an understanding with the defendant to suspend the instalment payments while settlement negotiations for an early final settlement were ongoing. The court found that any such agreement, if it existed, had expired, and the plaintiffs' obligations under the Agreement were still operative.

In conclusion, the court found that the defendant had satisfied the onus upon it to show that the plaintiffs had no defence to the defendant's claim for vacant possession of the property. The court awarded summary judgment in favour of the defendant and ordered the plaintiffs to provide vacant possession of the property within ten working days of the date of the judgment. Additionally, the court ordered the plaintiffs to pay the defendant's reasonable legal costs on the application on a full indemnity basis, including disbursements as approved by the Registrar.

Orders