Zwarst v Saxton - [2015] NZHC 1888

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000896 [2015] NZHC 1888

BETWEEN
RONALD JOHN ZWARST, LISA

TRACY ZWARST and CHRISTOPHER JOHN SAXTON as Trustees of the RJ and LT Zwarst Family Trust

Plaintiffs

AND

DAVID ANTHONY SAXTON Defendant

Hearing: 3 August 2015

Appearances:

J P Forsey for Plaintiffs
M Smyth for Defendant

Judgment:

11 August 2015

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

Background

[1]      The defendant is the owner of the land in Certificate of Title WS8C/1370. In November 2001 he signed an agreement to sell this property to Heliventures Limited, a company of which he was then the sole director. At that time the land had not been subdivided from a larger area, but subdivision was underway. Mr Saxton agreed to sell the other two allotments in the subdivision to the M D Saxton Family Trust and L T Saxton Family Trust, respectively. New titles were issued in May
2004. The three purchasers registered caveats against the titles to the land they had bought.    In December 2011 Mr Saxton took steps to lapse the caveats, but on
15 March 2012 the Court issued a judgment sustaining the caveats.   This was followed by an application for specific performance by each of the trusts, and in March 2013 orders for specific performance were made. The sales to the trusts were
then settled.

RJ ZWARST, LT ZWARST and CJ SAXTON as Trustees of the RJ and LT Zwarst Family Trust v DA SAXTON [2015] NZHC 1888 [11 August 2015]

[2] In August 2010 Heliventures Limited was put into liquidation. Although the liquidators took steps to sustain the caveat in favour of Heliventures, they did not take steps to obtain specific performance of the contract. In August 2014 they assigned the company’s interest as purchaser under the contract to the plaintiff trust and in September gave notice of assignment to Mr Saxton. The Trust then sought to settle the agreement, but the defendant declined to do so. In December 2014 the Trust filed this proceeding, seeking an order directing specific performance of the agreement.

[3] The Trust applies for summary judgment, as the other two trusts had done for their respective lots in June 2012. The principles the Court is to apply on an application for summary judgment are summarised in Krukziener v Hanover Finance Ltd:1

[26] The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3. The Court must be left without any real doubt or uncertainty. 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: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept…

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.

Continue reading Zwarst v Saxton

Details

AGLC: Zwarst v Saxton [2015] NZHC 1888
Case: [2015] NZHC 1888
Decision Date: 11 August 2015

CaseChat Overview and Summary

Zwarst v Saxton was a proceeding in the High Court of New Zealand for specific performance of a contract for sale of land. The defendants opposed the application for summary judgment on the basis of laches and the doctrine of unclean hands. The Court found that the defendant had not demonstrated a tenable defence on either ground. There had been no unreasonable delay in the bringing of the proceeding and the plaintiff came to the Court with clean hands. The Court ordered the defendant to specifically perform the agreement for sale and purchase and ordered the defendant to pay costs on a 2B basis, increased by one-third. The Court indicated that it would deal with costs on the papers if counsel were unable to reach agreement.

The case of Zwarst v Saxton involved a contract for sale of land that was assigned to the plaintiff Trust. The defendant opposed the application for summary judgment on the basis of laches and the doctrine of unclean hands. The Court found that the defendant had not demonstrated a tenable defence on either ground. The Court found that there had been no unreasonable delay in the bringing of the proceeding and that the plaintiff came to the Court with clean hands. The Court ordered the defendant to specifically perform the agreement for sale and purchase and ordered the defendant to pay costs on a 2B basis, increased by one-third. The Court indicated that it would deal with costs on the papers if counsel were unable to reach agreement.

Orders