CORPORATE SURETIES LIMITED v MACKEN AND KEARNEY [2017] NZHC 2700

CORPORATE SURETIES LIMITED v MACKEN AND KEARNEY [2017] NZHC 2700

The correspondence showed parties and their lawyers operated on the basis that a formal signed sale and purchase agreement and trustee resolution were prerequisites to contract formation; accordingly it was arguable (and accepted for summary judgment purposes) that the trustees did not intend to be bound until a written agreement was signed and the resolution passed, so summary judgment could not be granted.

Citation
[2017] NZHC 2700
Parties
First Plaintiff: Corporate Sureties Limited; Second Plaintiff: Catherine Ann A'Claire Macken; Defendant (trustee): Susan Carrel Macken; Defendant (trustee): Nicholas Norman Kearney
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 October 2017
Procedural Posture
Civil Specific Performance and Trust Dispute / Summary Judgment Hearing (oral Judgment) — Summary Judgment Dismissed; Case to Proceed to Defence
Outcome
Summary judgment application dismissed; proceeding to continue with defendants to file a statement of defence and parties to file required memoranda and costs submissions
Legal Topics
Specific Performance, Breach of Trust, Masters V Cameron Contractual Classification, Requirement for Written Agreement S 24 Property Law Act 2007, Trustee Indemnity and Recovery of Costs, Summary Judgment Principles
Trust Law Property Law Contract Law Equity Civil Procedure Tax (gst) Specific Performance Breach of Trust +4 more

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Parties

Corporate Sureties Limited

First Plaintiff

Catherine Ann A'Claire Macken

Second Plaintiff

Susan Carrel Macken

Defendant (trustee)

Nicholas Norman Kearney

Defendant (trustee)

Procedural Posture

Civil Specific Performance and Trust Dispute / Summary Judgment Hearing (oral Judgment) — Summary Judgment Dismissed; Case to Proceed to Defence

Legal Issues

  1. 1 Whether correspondence between lawyers formed a binding contract for sale of land (Masters v Cameron classification)
  2. 2 Whether the case falls within category one (immediately binding) or category three (not binding until formal contract)
  3. 3 Whether s 24 Property Law Act 2007 writing/signing requirements preclude enforcement

Ratio Decidendi

The correspondence showed parties and their lawyers operated on the basis that a formal signed sale and purchase agreement and trustee resolution were prerequisites to contract formation; accordingly it was arguable (and accepted for summary judgment purposes) that the trustees did not intend to be bound until a written agreement was signed and the resolution passed, so summary judgment could not be granted.

Court Disposition

Summary judgment application dismissed; proceeding to continue with defendants to file a statement of defence and parties to file required memoranda and costs submissions

Orders

  • Summary judgment application dismissed
  • Defendants to file and serve a statement of defence within 25 working days of delivery of the written judgment