KEVIN DAVID CARLIN, AS TRUSTEE OF THE KEVIN CARLIN QUEENSLAND TRUST V PAUL ALBERT ARTHUR DOLHEGUY, CLAIRE BERNIE DOLHEGUY AND RICHARD HENRY DIGBY NEAVE, AS TRUSTEES OF THE PAA DOLHEGUY FAMILY TRUST HC CHCH CIV-2009-409-002082

KEVIN DAVID CARLIN, AS TRUSTEE OF THE KEVIN CARLIN QUEENSLAND TRUST V PAUL ALBERT ARTHUR DOLHEGUY, CLAIRE BERNIE DOLHEGUY AND RICHARD HENRY DIGBY NEAVE, AS TRUSTEES OF THE PAA DOLHEGUY FAMILY TRUST HC CHCH CIV-2009-409-002082

The consent notice's maintenance obligations materially and detrimentally affected an owner's enjoyment of lot 14 and, because those obligations were not known or reasonably discoverable by the purchasers before contracting, the purchasers had reasonable grounds under clause 19 to cancel; by contrast, the landscape alterations (removal of two maytenus trees and limited shrub removal) did not give reasonable grounds for cancellation under clause 22; accordingly the purchasers' cancellation is upheld and the plaintiff's claim for specific performance fails.

Citation
openlaw-1ed86be6_0601_4f0b_bd9e_7594c76c31f1.pdf
Parties
Plaintiff/vendor: KEVIN DAVID CARLIN, AS TRUSTEE OF THE KEVIN CARLIN QUEENSLAND TRUST; Defendants/purchasers: PAUL ALBERT ARTHUR DOLHEGUY; CLAIRE BERNIE DOLHEGUY; RICHARD HENRY DIGBY NEAVE, AS TRUSTEES OF THE PAA DOLHEGUY FAMILY TRUST
Court
High Court
Jurisdiction
New Zealand
Judgment Date
12 May 2010
Procedural Posture
Specific Performance of Sale and Purchase Agreement / Final Judgment at Trial
Outcome
Defendants' cancellation upheld; plaintiff's claim for specific performance dismissed; judgment for defendants
Legal Topics
Specific Performance, Contract Cancellation for Detrimental Encumbrance, Consent Notice / Encumbrance Running With the Land, Notice (actual and Constructive), Interpretation of Contractual 'detriment' Test, Valuation of Land Impact
Property Law Contract Law Equity (specific Performance) Resource Management/land Use Law Conveyancing/torrens Title Specific Performance Contract Cancellation for Detrimental Encumbrance Consent Notice / Encumbrance Running With the Land +3 more

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Parties

KEVIN DAVID CARLIN, AS TRUSTEE OF THE KEVIN CARLIN QUEENSLAND TRUST

Plaintiff/vendor

PAUL ALBERT ARTHUR DOLHEGUY; CLAIRE BERNIE DOLHEGUY; RICHARD HENRY DIGBY NEAVE, AS TRUSTEES OF THE PAA DOLHEGUY FAMILY TRUST

Defendants/purchasers

Procedural Posture

Specific Performance of Sale and Purchase Agreement / Final Judgment at Trial

Legal Issues

  1. 1 Whether landscape alterations to the western boundary detrimentally affected value or use sufficient to justify cancellation under cl 22
  2. 2 Whether a consent notice imposing maintenance obligations detrimentally affected value or use sufficient to justify cancellation under cl 19
  3. 3 Whether the purchasers had actual or constructive notice of the Deed (and thus the likely consent notice) when contracting

Ratio Decidendi

The consent notice's maintenance obligations materially and detrimentally affected an owner's enjoyment of lot 14 and, because those obligations were not known or reasonably discoverable by the purchasers before contracting, the purchasers had reasonable grounds under clause 19 to cancel; by contrast, the landscape alterations (removal of two maytenus trees and limited shrub removal) did not give reasonable grounds for cancellation under clause 22; accordingly the purchasers' cancellation is upheld and the plaintiff's claim for specific performance fails.

Court Disposition

Defendants' cancellation upheld; plaintiff's claim for specific performance dismissed; judgment for defendants

Orders

  • Judgment for defendants upholding their cancellation of the contract
  • Plaintiff's claim for specific performance dismissed