BLUE PROPERTIES LIMITED AND STARTING FIVE LIMITED V MKW HOLDINGS LIMITED HC WN CIV 2007-485-1016

BLUE PROPERTIES LIMITED AND STARTING FIVE LIMITED V MKW HOLDINGS LIMITED HC WN CIV 2007-485-1016

Clause 4.3 is properly read as creating a notional/hypothetical calculation: where the Vendor completes the Vendor's Works the Purchaser must pay an amount equivalent to what the Purchaser would have spent to implement the Purchaser's Proposed Works, calculated by reference to the items listed in clause 4.3. Separately, the sale of the three remaining unit‑titled carparks as part of the wider sale to Multiplex amounted to those carparks being 'available for sale' and selling them without first offering them to the Purchaser at the contractual price breached clause 16.1.

Citation
openlaw-13a58a47_4c24_4d79_96f9_243a25dac1c4.pdf
Parties
Plaintiff/counterclaim Defendant: Blue Properties Limited; Plaintiff/counterclaim Defendant: Starting Five Limited; Defendant/counterclaim Plaintiff: MKW Holdings Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
1 August 2008
Procedural Posture
Civil Contract and Real Property (sale of Land, Option/right of First Refusal) / Judgment Delivered
Outcome
Split judgment: Vendor/Plaintiff succeeds on interpretation and operation of clause 4.3; Purchaser/Defendant succeeds on counterclaim limited to the sale of the three remaining unit‑titled carparks (breach of clause 16.1). Leave reserved on quantum and costs.
Legal Topics
Contract Interpretation, Variation Agreement, Right of First Refusal/pre Emption, Options to Purchase, Calculation of Compensation, Title Restructuring
Contract Law Real Property/property Law Civil Remedies Contract Interpretation Variation Agreement Right of First Refusal/pre Emption Options to Purchase Calculation of Compensation +1 more

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Parties

Blue Properties Limited

Plaintiff/counterclaim Defendant

Starting Five Limited

Plaintiff/counterclaim Defendant

MKW Holdings Limited

Defendant/counterclaim Plaintiff

Procedural Posture

Civil Contract and Real Property (sale of Land, Option/right of First Refusal) / Judgment Delivered

Legal Issues

  1. 1 Interpretation of clause 4.3 of the Variation Agreement: whether payment is calculated hypothetically 'as if' the Vendor had carried out the Purchaser's Proposed Works or limited to items the Vendor actually incurred
  2. 2 Whether sale of three remaining unit‑titled carparks as part of a larger site sale breached the Purchaser's right of first refusal in clause 16.1 (meaning of 'available for sale')

Ratio Decidendi

Clause 4.3 is properly read as creating a notional/hypothetical calculation: where the Vendor completes the Vendor's Works the Purchaser must pay an amount equivalent to what the Purchaser would have spent to implement the Purchaser's Proposed Works, calculated by reference to the items listed in clause 4.3. Separately, the sale of the three remaining unit‑titled carparks as part of the wider sale to Multiplex amounted to those carparks being 'available for sale' and selling them without first offering them to the Purchaser at the contractual price breached clause 16.1.

Court Disposition

Split judgment: Vendor/Plaintiff succeeds on interpretation and operation of clause 4.3; Purchaser/Defendant succeeds on counterclaim limited to the sale of the three remaining unit‑titled carparks (breach of clause 16.1). Leave reserved on quantum and costs.

Orders

  • Vendor succeeds on its claim concerning clause 4.3 and is entitled to payment as calculated under clause 4.3 (quantum to be determined)
  • Purchaser succeeds on its counterclaim to the extent that the sale of the three remaining separate unit titled carparks to Multiplex without first offering them to the Purchaser at $20,000 plus GST each breached clause 16.1