TENNANT V GORE STREET TRUSTEE LTD AND ANOR HC AK CIV-2007-404-1095

TENNANT V GORE STREET TRUSTEE LTD AND ANOR HC AK CIV-2007-404-1095

There is a serious question to be tried on whether the sale and purchase agreement was validly cancelled and whether clause 27 of the Homebond agreement obliges NZHB to pay where the purchaser has cancelled; given the risk of irreversible prejudice to the purchasers if payment is made now (NZHB can recover and has security; vendor may be liquidated) the balance of convenience favours granting interim relief restraining payment pending further order.

Citation
openlaw-0a6f4928_31f8_45d7_8058_ca2c4bae736b.pdf
Parties
First Plaintiff: Keith Stewart Tennant; Second Plaintiff: Beverley Ann Tennant; First Defendant: Gore Street Trustee Limited; Second Defendant: New Zealand Home Bonds Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 March 2007
Procedural Posture
Civil Interim Injunction Application / Interim Application (ex Parte Application With Pickwick Notice)
Outcome
Interim injunction granted restraining NZHB from paying the deposit to Gore Street Trustee Limited until further order; leave reserved to any party to apply on 48 hours' notice to vary or rescind.
Legal Topics
Contract Interpretation, Contractual Cancellation, Interim Injunction, Contractual Remedies Act 1979, Third Party Payment Obligations
Contract Property Civil Procedure Equity Contract Interpretation Contractual Cancellation Interim Injunction Contractual Remedies Act 1979 +1 more

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Parties

Keith Stewart Tennant

First Plaintiff

Beverley Ann Tennant

Second Plaintiff

Gore Street Trustee Limited

First Defendant

New Zealand Home Bonds Limited

Second Defendant

Procedural Posture

Civil Interim Injunction Application / Interim Application (ex Parte Application With Pickwick Notice)

Legal Issues

  1. 1 Whether clause 27 of the Homebond agreement requires payment where the purchaser has validly cancelled the sale and purchase agreement or only where the purchaser has failed to settle when obliged to do so
  2. 2 Whether the sale and purchase agreement was validly cancelled for misrepresentation and/or failure to obtain promised finance notwithstanding an entire agreement clause
  3. 3 Whether there is a serious question to be tried and whether the balance of convenience favours granting interim relief

Ratio Decidendi

There is a serious question to be tried on whether the sale and purchase agreement was validly cancelled and whether clause 27 of the Homebond agreement obliges NZHB to pay where the purchaser has cancelled; given the risk of irreversible prejudice to the purchasers if payment is made now (NZHB can recover and has security; vendor may be liquidated) the balance of convenience favours granting interim relief restraining payment pending further order.

Court Disposition

Interim injunction granted restraining NZHB from paying the deposit to Gore Street Trustee Limited until further order; leave reserved to any party to apply on 48 hours' notice to vary or rescind.

Orders

  • No amount shall be paid by the second defendant to the first defendant (or any subsequent trustee of First City Trust) pursuant to the agreement comprised by the plaintiffs' application dated 9 June 2005 and the second defendants' letter dated 17 August 2005 until further order of this Court.
  • Leave is reserved to any party to apply to this Court on 48 hours' notice for an order rescinding, or varying, these orders.