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

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

Court found there was a valid unconditional sale agreement between plaintiff and Freeport dated 4 March 2002; Vivien Chu had valid authority under a 20 October 2000 power of attorney to sign for Freeport; plaintiff lodged caveat and was ready to settle; the subsequent assignment and purported mortgagee sale were invalid because s92 procedures and required notices were defective or not applicable and the mortgagee sale was a contrived scheme by related defendants facilitated by Mr Dorbu; defendants therefore cannot defeat the plaintiff's contractual and equitable rights and plaintiff is entitled to specific performance and ancillary relief.

Citation
openlaw-54d1ca64_79a3_4bde_873c_5167aec08810.pdf
Parties
Plaintiff: Ivan Barge; First Defendant: Freeport Development Limited; Second Defendant: Shou-Lung Chiao; Third Defendant: Jiao Yi Hua; Fourth Defendants: Harsono Family Trust (Hsueh Wi Huang, Shou Chen Chiao, Jiao Yi Hua trustees)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
27 October 2005
Procedural Posture
Civil Contract, Property and Tort / High Court Judgment (reserved Judgment Delivered)
Outcome
Judgment for plaintiff: decree of specific performance; declaration that purported mortgagee sale was invalid; injunctions and directions; damages inquiries ordered; costs reserved.
Legal Topics
Specific Performance, Mortgagee Sale, Caveat, Power of Attorney, S92 Property Law Act 1952, Inducement to Breach Contract, Unlawful Means Conspiracy, Constructive Trust, Perjury and Professional Misconduct
Contract Property Law Equity Tort Companies Law Conveyancing Professional Conduct Specific Performance +8 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 7 Authorities cited 17 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

Ivan Barge

Plaintiff

Freeport Development Limited

First Defendant

Shou-Lung Chiao

Second Defendant

Jiao Yi Hua

Third Defendant

Harsono Family Trust (Hsueh Wi Huang, Shou Chen Chiao, Jiao Yi Hua trustees)

Fourth Defendants

Procedural Posture

Civil Contract, Property and Tort / High Court Judgment (reserved Judgment Delivered)

Legal Issues

  1. 1 Was there a valid unconditional contract between plaintiff and Freeport?
  2. 2 Did Vivien Chu have authority to bind Freeport?
  3. 3 Was the purported mortgagee sale valid (compliance with s92 PLA and assignment)?

Ratio Decidendi

Court found there was a valid unconditional sale agreement between plaintiff and Freeport dated 4 March 2002; Vivien Chu had valid authority under a 20 October 2000 power of attorney to sign for Freeport; plaintiff lodged caveat and was ready to settle; the subsequent assignment and purported mortgagee sale were invalid because s92 procedures and required notices were defective or not applicable and the mortgagee sale was a contrived scheme by related defendants facilitated by Mr Dorbu; defendants therefore cannot defeat the plaintiff's contractual and equitable rights and plaintiff is entitled to specific performance and ancillary relief.

Court Disposition

Judgment for plaintiff: decree of specific performance; declaration that purported mortgagee sale was invalid; injunctions and directions; damages inquiries ordered; costs reserved.

Orders

  • Decree that the first defendant specifically perform the 4 March 2002 agreement.
  • Short urgent hearing (1.5 hours) to determine the precise sum the plaintiff must pay under the contract, with penalty interest and set-off for $37,770 (fire protection) to be dealt with.