COURTNEY PARK LIMITED V HOOKER HC TAU CIV-2009-470-213
The plaintiff was entitled to cancel the agreement due to the purchaser's breaches and accordingly was entitled to recover possession of the property; an explicit court order declaring cancellation under s 7 was unnecessary where the Court grants relief demonstrating cancellation; insufficient material was before...
Source-derived case information.
- Citation
- openlaw-5817a416_9b83_41e5_a359_1d2e35e98f09.pdf
- Parties
- Plaintiff: Courtney Park Limited; Defendant: Freddy Hooker
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 10 June 2009
- Procedural Posture
- Summary Judgment Recovery of Land / Oral Judgment on Summary Judgment Application
- Outcome
- Summary judgment granted in part: plaintiff entitled to recover possession; cancellation acknowledged; no award of damages for occupation made on available material; costs reserved.
- Legal Topics
- Cancellation of Contract, Recovery of Possession, Damages for Occupation, Costs, Contractual Remedies Act S7
Source-derived case record
Summary, issues, holding and outcome
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Parties
Courtney Park Limited
Plaintiff
Freddy Hooker
Defendant
Procedural Posture
Summary Judgment Recovery of Land / Oral Judgment on Summary Judgment Application
Legal Issues
- 1 Whether vendor was entitled to cancel the long-term purchase agreement due to purchaser's breaches
- 2 Whether the plaintiff is entitled to summary judgment for recovery of possession of the property
- 3 Whether the Court should award damages for the defendant remaining in possession
Ratio Decidendi
The plaintiff was entitled to cancel the agreement due to the purchaser's breaches and accordingly was entitled to recover possession of the property; an explicit court order declaring cancellation under s 7 was unnecessary where the Court grants relief demonstrating cancellation; insufficient material was before the Court to award damages for the defendant's continued occupation.
Court Disposition
Summary judgment granted in part: plaintiff entitled to recover possession; cancellation acknowledged; no award of damages for occupation made on available material; costs reserved.
Orders
- Plaintiff entitled to recovery of possession of the property at 62 Courtney Road, Tauranga
- No order made for damages arising from the defendant's remaining in possession due to limited material
Full Case Text
Judgment text and source record
1 paragraphs
COURTNEY PARK LIMITED V HOOKER HC TAU CIV-2009-470-213 10 June 2009IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY CIV-2009-470-213IN THE MATTER OF an application for summary judgment for the recovery of land BETWEEN COURTNEY PARK LIMITED Plaintiff AND FREDDY HOOKER Defendant Hearing: 10 June 2009 Appearances: Mr M J Toner for Plaintiff Judgment: 10 June 2009ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUESolicitors: M J Toner, P O Box 13394, Tauranga Copy: Mr F Hooker, 62 Courtney Road, Tauranga[1] In this case the vendor has given a notice of cancellation under a long-term purchase agreement over land. The application for summary judgment seeks a number of orders with the principal one being recovery of possession of the property situated at 62 Courtney Road, Tauranga and payment of the sum of $2,200 per week which the applicant was entitled to under the agreement. No steps have been taken by the defendant and the plaintiff has filed evidence establishing breaches of the contract on the part of the defendant and has satisfied me that it was entitled to cancel the contract. As a result the plaintiff is not required to perform the contract any further and is entitled to recovery of possession of the property. [2] Given the limited material before me today I am not prepared to make an order directing the defendant to pay damages arising from his remaining in possession of the property. As to the first order sought in the application for summary judgment which is an order 'cancelling the agreement for sale and purchase' it seems to me that the act of cancellation of an agreement in terms of s 7 of the Contractual Remedies Act 1979 is an act of a party to the contract rather than to the Court. The fact that I have granted relief by way of recovery of possession indicates that I accept that the plaintiff was entitled to cancel the contract as I have said because the purchaser was in breach. I do not believe that any further explicit order is necessary. [3] The final matter that needs to be dealt with is the costs of the summary judgment application and I consider that those should be reserved. [4] The Registrar is to allocate a conference for this matter in case the plaintiff intends to proceed further. If the plaintiff does not wish to proceed further it is open to him to file a discontinuance. _____________ J.P. Doogue Associate Judge