BARGE V FREEPORT DEVELOPMENT LTD AND ORS HC AK CIV-2002-404-1771

BARGE V FREEPORT DEVELOPMENT LTD AND ORS HC AK CIV-2002-404-1771

Where defendants deliberately refuse to deliver documents necessary to perfect a decree of specific performance the Court may, relying on s 3(1) Judicature Amendment Act 1910 and its inherent jurisdiction to prevent obstruction of process, direct the Registrar‑General of Lands to note a mortgage discharge and register a memorandum of transfer when presented, thereby enabling enforcement of specific performance without requiring further compliance by the recalcitrant parties.

Citation
openlaw-29ae6a9f_a4d5_4bb7_8163_4dd45c6f4f70.pdf
Parties
Plaintiff: Ivan Barge; First Defendant: Freeport Development Ltd; Second Defendant: Shou‑Lung Chiao; Third Defendant: Jiao Yi Hua; Fourth Defendants: Jiao Yi Hua, Hsueh Wi Huang and Shou Chen Chiao as trustees of the Harsono Family Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 May 2006
Procedural Posture
Civil Enforcement of Judgment / Specific Performance / Post‑judgment Directions Hearing (application for Enforcement and Consequential Orders)
Outcome
Application for directions granted in part; the Court ordered steps to enable registration of transfer and allocated further procedural steps including a trial fixture for damages and costs to the plaintiff.
Legal Topics
Specific Performance, Enforcement of Judgment, Appointment of Registrar to Execute Transfer, Preservation Order, Stay of Execution, Costs, Conflict of Interest / Counsel Duties
Civil Property Equity Trusts Procedure Contract Specific Performance Enforcement of Judgment +5 more

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Parties

Ivan Barge

Plaintiff

Freeport Development Ltd

First Defendant

Shou‑Lung Chiao

Second Defendant

Jiao Yi Hua

Third Defendant

Jiao Yi Hua, Hsueh Wi Huang and Shou Chen Chiao as trustees of the Harsono Family Trust

Fourth Defendants

Procedural Posture

Civil Enforcement of Judgment / Specific Performance / Post‑judgment Directions Hearing (application for Enforcement and Consequential Orders)

Legal Issues

  1. 1 Whether the Court may compel registration of transfer where defendants refuse to deliver discharge of mortgage and memorandum of transfer
  2. 2 Whether s 3(1) Judicature Amendment Act 1910 empowers appointment/direction to a third party to execute or enable execution of documents to perfect specific performance
  3. 3 Whether the Court should exercise inherent jurisdiction to prevent obstruction of its process

Ratio Decidendi

Where defendants deliberately refuse to deliver documents necessary to perfect a decree of specific performance the Court may, relying on s 3(1) Judicature Amendment Act 1910 and its inherent jurisdiction to prevent obstruction of process, direct the Registrar‑General of Lands to note a mortgage discharge and register a memorandum of transfer when presented, thereby enabling enforcement of specific performance without requiring further compliance by the recalcitrant parties.

Court Disposition

Application for directions granted in part; the Court ordered steps to enable registration of transfer and allocated further procedural steps including a trial fixture for damages and costs to the plaintiff.

Orders

  • Order that the Registrar‑General of Lands note the memorial for Certificate of Title NA22A/1110 that Mortgage No. D572239.4 from Freeport Development Ltd to Bank of New Zealand has been discharged and to register a memorandum of transfer of the property from Freeport to Ivan Barge when presented
  • Direction that the Registrar be available to implement transfer and that the Court will hear any application to vary undertakings (to be filed promptly) at short notice and to fix a date for such application