Victoria Key Limited v Bastin HC Tauranga CIV-2009-470-080

[2011] NZHC 363

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2009-470-080

BETWEEN  VICTORIA KEY LIMITED Plaintiff

ANDKEVIN MAURICE BASTIN First Defendant

ANDKEVIN MAURICE BASTIN (AS TRUSTEE)

Second Defendant

ANDCATHERINE MARY EDMONDS (AS TRUSTEE)

Third Defendant

Hearing:         4 March 2011

Appearances: Ms McLeish for Plaintiff

No appearance for Defendant

Judgment:      4 March 2011

ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE

Solicitors:

Sharp Tudhope, Private Bag 12020, TAURANGA -

[email protected]

Mr Bastin c/o Brian Henry - [email protected]

VICTORIA KEY LIMITED V BASTIN & ORS HC TAU CIV-2009-470-080 4 March 2011

[1]      I gave judgment in this matter following an opposed hearing on 13 October

2009.  The judgment ordered the defendant to perform the contract entered into with the plaintiff. The order was not complied with in the sense that the defendant has not performed the contract.   In March 2010 the parties entered into a compromise arrangement as part of which the defendant signed an admission of debt, the terms of which he acknowledged that he owed the plaintiff the sum of $169,534.66.

[2]      The parties, as part of the settlement reached 9 March 2010, agreed that the underlying agreement for sale and purchase of the property was to be cancelled.  The plaintiff now seeks to have the order for specific performance dissolved so that it can proceed against Mr Bastin on an alternative basis, namely for judgment in terms of the admission of claim which I have mentioned.  The plaintiff has given notice to Mr Bastin of its intention to proceed in this way by serving on him an application to the Court.  No opposition has been filed to the application for the orders which I sought today.   I am satisfied that it is just and reasonable that the order for specific performance that I made ought to be discharged and I order accordingly.

[3]      In  place  of  the  order  for  specific  performance  there  is  substituted  the following judgment:

a)       Judgment for the plaintiff against the first defendant Mr Bastin in the sum of $169,534.66;

b)The  amount  of  the  judgment  will  bear  interest  pursuant  to  the Judicature Act 1908.  The first defendant will pay costs on a 2B basis together  with  disbursements  relating  to  the  application  dated  10

February 2011.

J.P. Doogue

Associate Judge