AHIPARA DEVELOPMENTS LTD V HAPE HC AK CIV-2011-404-1269

AHIPARA DEVELOPMENTS LTD V HAPE HC AK CIV-2011-404-1269 29 November 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2011-404-1269BETWEEN AHIPARA DEVELOPMENTS LTDPlaintiffAND SHONTAYNE EDWARD HAPE ANDLIANA ETTA HAPEDefendantsHearing: 28 November 2011Counsel: G J Kohler for PlaintiffNo appearance by or on behalf of DefendantsJudgment: 29 November 2011JUDGMENT OF BREWER JThis judgment was delivered by me on 29 November 2011 at 2:00 pmpursuant to Rule 11.5 High Court Rules.Registrar/Deputy Registrar_________________________________________________________________________________SOLICITORSHeugh M Kelly (Wellsford) for PlaintiffCOUNSELGJ KohlerIntroduction[1] The plaintiff seeks orders that the defendants specifically perform two agreements for sale and purchase of real estate.[2] No steps have been taken by the defendants and so the matter came before me on a formal proof basis.The plaintiff's evidence[3] Service of the proceeding has been effected on the defendants.[4] Evidence on behalf of the plaintiff was given by Mr O'Rourke. Mr O'Rourkehas been employed by the plaintiff in a senior role from early 2004 to the present date. He has personal knowledge of the factual matters.[5] Mr O'Rourke's evidence establishes that on 9 January 2007 the defendants as purchasers entered into agreements for sale and purchase of two sections in a subdivision known as the Sandhills Road subdivision. The agreements related to lots 8 and 9 of the subdivision. The purchase price for lot 8 was $158,000 and the purchase price for lot 9 was $160,000.[6] Each agreement contained identical conditions. On the evidence before me, and in particular the inferences which can be drawn from the documents in exhibit 1, I am satisfied that the conditions were either fulfilled or waived.[7] The agreements became unconditional, the deposits were paid, notice of settlement was duly given and the defendants failed or refused to complete settlement.[8] The exhibited correspondence does not show any reason advanced by or on behalf of the defendants for them not completing their obligations under the agreements. Mr O'Rourke has said that as far as he is aware no actual reason hasbeen given by the defendants. There is an available inference that the market prices of the sections have fallen.Decision[9] The defendants are liable at law to perform their obligations under the agreements, and in particular to complete payment in terms of the agreements.[10] I am satisfied that specific performance is a better remedy in this case than judgment on liability with a direction for a damages hearing.[11] The defendants contracted to buy the sections. They have taken no steps despite knowing that the primary remedy being sought is specific performance. There is, for example, no reason for me to suppose that the defendants cannot comply with an order for specific performance because of lack of financial means.[12] Accordingly, I order:(a) That the defendants specifically perform the agreement for sale and purchase dated 9 January 2007 in respect of lot 8, Sandhills Road, Ahipara; and(b) That the defendants specifically perform the agreement for sale and purchase dated 9 January 2007 in respect of lot 9, Sandhills Road, Ahipara; and(c) That the defendants pay the plaintiff its costs in this proceeding to be calculated on a 2B basis.[13] Leave is reserved to the plaintiff to apply for further or varied orders (including orders for damages) as might prove necessary to give proper effect to the orders made hereunder or to otherwise recognise the finding of liability on the part of the defendants.________________________________Brewer J