Whitlock v White HC Rotorua CIV-2011-463-000426

[2011] NZHC 1792

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2011-463-000426

BETWEEN  DALE WILLIAM WHITLOCK AND JOANNE ELIZABETH RENNER Plaintiffs

ANDMICHAEL THEO WHITE AND HELEN MAY WHITE

Defendants

Hearing:         8 December 2011

Counsel:         SJ Clews for Plaintiffs

Judgment:      8 December 2011

JUDGMENT OF ASHER J

Solicitors/Counsel:

Osborne Attewell Clews, DX JA31503, Whakatane 3158. Email: [email protected]

WHITLOCK V WHITE HC ROT CIV-2011-463-000426 8 December 2011

[1]      Mr Clews on behalf of the plaintiffs seeks judgment against the defendants by way of formal proof.

[2]      There is on the file an affidavit of Dale Whitlock recording the payment of

$220,000 in consideration of the subdivision and transfer of a section by the defendants.  The subdivision did not proceed.  No explanation has been given by the defendants.    A letter  was  sent  by  the  plaintiffs’ lawyers  to  the  defendants  on

13 February 2009 expressing concern that no steps appeared to have been taken to pursue a subdivision.   The refund of the money paid together with interest was sought.

[3]      A further two years went by and on 26 April 2011 a letter was sent requiring transfer of the land within 14 days, time being of the essence.  On 12 May 2011 a letter cancelling the agreement was forwarded to the Whites.

[4]      I am satisfied that on a formal proof basis this claim is made out, and that in particular the damages claimed of $220,000 are properly recoverable.  It appears to have been a valid cancellation and there should be a refund of all monies paid.

[5]      Therefore, the plaintiffs will have judgment against the defendants in the sum of $220,000.  Interest is warranted from the date when the cause of action arose. The plaintiffs will therefore have interest against the defendants at the rate prescribed in the Judicature Act 1908 from 12 May 2011.

Costs

[6]      I order that the plaintiffs have costs on a 2B basis together with reasonable disbursements.

Summary

(a)       Judgment is entered for the plaintiffs for $220,000.

(b)The defendants will pay the plaintiffs costs on a 2B basis together with reasonable disbursements.

……………………………..

Asher J