MICHAEL BERNARD THOMAS AND JANE EASTON THOMAS V DANIEL BERNARD THOMAS AND KERRYN ELIZABETH THOMAS HC TIM CIV-2011-476-000075

MICHAEL BERNARD THOMAS AND JANE EASTON THOMAS V DANIEL BERNARD THOMAS AND KERRYN ELIZABETH THOMAS HC TIM CIV-2011-476-000075

On objective interpretation of the 6 November 2008 mediation agreement the defendants were in breach by failing to undertake further land sales after the Pebbly Block contract collapsed; clause 2(iv) requires the defendants to market and sell other land sufficient to pay the cash portion of the agreed share sale price and clause 9 contemplates sequential payments tied to those sales; plaintiffs entitled to specific performance, with detailed orders to be settled by counsel and the Court.

Citation
openlaw-50870595_f95f_41c6_991a_0217c4dc2eac.pdf
Parties
Plaintiff: Michael Bernard Thomas; Plaintiff: Jane Easton Thomas; Defendant: Daniel Bernard Thomas; Defendant: Kerryn Elizabeth Thomas
Court
High Court
Jurisdiction
New Zealand
Judgment Date
28 October 2011
Procedural Posture
Contract Dispute Specific Performance of Mediation Agreement / Application for Summary Judgment (liability Determined; Remedy to Be Settled)
Outcome
Liability: defendants found in breach; specific performance ordered in principle; precise remedial orders to be settled and issued after counsel submissions
Legal Topics
Specific Performance, Contract Interpretation, Breach of Contract, Enforcement of Mediation Settlement, Sale of Land, Mortgage/guarantee Obligations
Contract Law Equity Property Law Civil Procedure Specific Performance Contract Interpretation Breach of Contract Enforcement of Mediation Settlement +2 more

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Parties

Michael Bernard Thomas

Plaintiff

Jane Easton Thomas

Plaintiff

Daniel Bernard Thomas

Defendant

Kerryn Elizabeth Thomas

Defendant

Procedural Posture

Contract Dispute Specific Performance of Mediation Agreement / Application for Summary Judgment (liability Determined; Remedy to Be Settled)

Legal Issues

  1. 1 Whether defendants breached the 6 November 2008 mediation agreement
  2. 2 Whether defendants are obliged to undertake further land sales after collapse of Pebbly Block contract to pay the cash portion of share sale price
  3. 3 Whether payments under clause 2 were payable sequentially as sales completed or in one lump sum on settlement

Ratio Decidendi

On objective interpretation of the 6 November 2008 mediation agreement the defendants were in breach by failing to undertake further land sales after the Pebbly Block contract collapsed; clause 2(iv) requires the defendants to market and sell other land sufficient to pay the cash portion of the agreed share sale price and clause 9 contemplates sequential payments tied to those sales; plaintiffs entitled to specific performance, with detailed orders to be settled by counsel and the Court.

Court Disposition

Liability: defendants found in breach; specific performance ordered in principle; precise remedial orders to be settled and issued after counsel submissions

Orders

  • Declare defendants in breach of the 6 November 2008 mediation agreement by failing to undertake land sales to meet the cash portion of the agreed share sale price
  • Order that plaintiffs are entitled to specific performance of the agreement; precise terms of specific performance to be determined