MCCARTHY V MCCARTHY HC AK CIV-2012-404-0213

MCCARTHY V MCCARTHY HC AK CIV-2012-404-0213

The Agreement did not entitle the defendant to indefinitely withhold performance pending identification and resolution of all potential 2011 liabilities; the defendant had no arguable defence on interpretation of the contract and specific performance compelling transfer of 519 shares in IEAUS to the plaintiff was granted because the plaintiff was willing and able to perform and accounts for IENZ were not a precondition to completion.

Citation
openlaw-6b1ea3d7_982c_4ef3_820a_4d40df492734.pdf
Parties
Applicant: Eugene Gabriel McCarthy; Respondent: Rosemarie McCarthy
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 July 2012
Procedural Posture
Summary Judgment Application / Judgment on Summary Judgment
Outcome
Specific performance granted: defendant ordered to transfer 519 shares in IEAUS to plaintiff; costs awarded to plaintiff on a 2B basis with disbursements fixed by the registrar; leave granted to apply for further directions.
Legal Topics
Specific Performance, Contract Interpretation, Share Transfer, Indemnity Obligations, Summary Judgment Procedure
Contract Law Equity Company Law Tax Law Specific Performance Contract Interpretation Share Transfer Indemnity Obligations +1 more

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Parties

Eugene Gabriel McCarthy

Applicant

Rosemarie McCarthy

Respondent

Procedural Posture

Summary Judgment Application / Judgment on Summary Judgment

Legal Issues

  1. 1 Whether specific performance compelling transfer of shares should be granted
  2. 2 Whether defendant can withhold transfer pending preparation of 31 March 2011 accounts and a full "wash-up" of liabilities
  3. 3 Whether clause 11 appointment of an independent administrator (William Grieve) requires referral before court adjudication

Ratio Decidendi

The Agreement did not entitle the defendant to indefinitely withhold performance pending identification and resolution of all potential 2011 liabilities; the defendant had no arguable defence on interpretation of the contract and specific performance compelling transfer of 519 shares in IEAUS to the plaintiff was granted because the plaintiff was willing and able to perform and accounts for IENZ were not a precondition to completion.

Court Disposition

Specific performance granted: defendant ordered to transfer 519 shares in IEAUS to plaintiff; costs awarded to plaintiff on a 2B basis with disbursements fixed by the registrar; leave granted to apply for further directions.

Orders

  • Specific performance: Defendant to transfer her 519 shares in International Entertainment (Aust) Pty Limited (IEAUS) to the plaintiff forthwith
  • Costs: Defendant to pay plaintiff's costs on a 2B basis and disbursements fixed by the Registrar