FRANCIS v FRANCIS and FRANCIS [2018] NZHC 1753

FRANCIS v FRANCIS and FRANCIS [2018] NZHC 1753

The ADLS/REINZ sale agreement for the garden centre did not, by implication or express term, require the ANZ mortgage to remain on title until the partnership's bank debt was repaid; the contract was effective without such an implied term and business efficacy and obviousness tests were not met. Consequently plaintiffs were entitled to specific performance for transfer of the garden centre (with mortgage discharged if the bank consents), entitlement to transfer of the Waihi bach, and transfer of Waimauku titles (subject to the unresolved Acacia lease issue); claims for late settlement interest were not decided on summary judgment and were dismissed from the summary judgment application...

Citation
[2018] NZHC 1753
Parties
First Plaintiff: John Stuart Francis; Second Plaintiff: James Stanley Francis; Third Plaintiff: FBL Properties Ltd; Defendant: Robert Warwick Francis; Defendant: Deborah Margaret Francis
Court
High Court
Jurisdiction
New Zealand
Judgment Date
27 July 2018
Procedural Posture
Partnership Dissolution; Specific Performance and Conveyancing Disputes / Summary Judgment Application (high Court Judgment on Interlocutory Summary Judgment)
Outcome
Summary judgment granted in part for specific performance of transfers; summary judgment dismissed for claims for interest for late settlement; further case management directed
Legal Topics
Partnership Dissolution and in Specie Distribution, Specific Performance of Contracts for Sale of Land, Interpretation and Implication of Contract Terms, Vendor Mortgages and Discharge on Sale, Summary Judgment Procedure, Interest for Late Settlement, Conveyancing Requirements and Land Transfer Forms
Partnership Law Property Law Contract Law Equity and Trusts Civil Procedure Partnership Dissolution and in Specie Distribution Specific Performance of Contracts for Sale of Land Interpretation and Implication of Contract Terms +4 more

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Parties

John Stuart Francis

First Plaintiff

James Stanley Francis

Second Plaintiff

FBL Properties Ltd

Third Plaintiff

Robert Warwick Francis

Defendant

Deborah Margaret Francis

Defendant

Procedural Posture

Partnership Dissolution; Specific Performance and Conveyancing Disputes / Summary Judgment Application (high Court Judgment on Interlocutory Summary Judgment)

Legal Issues

  1. 1 Whether sale agreement for garden centre required discharge of ANZ mortgage on transfer
  2. 2 Whether plaintiffs entitled to specific performance to transfer garden centre, Waihi bach and Waimauku titles under dissolution agreement
  3. 3 Whether an implied term required mortgage to remain on title until bank debt repaid

Ratio Decidendi

The ADLS/REINZ sale agreement for the garden centre did not, by implication or express term, require the ANZ mortgage to remain on title until the partnership's bank debt was repaid; the contract was effective without such an implied term and business efficacy and obviousness tests were not met. Consequently plaintiffs were entitled to specific performance for transfer of the garden centre (with mortgage discharged if the bank consents), entitlement to transfer of the Waihi bach, and transfer of Waimauku titles (subject to the unresolved Acacia lease issue); claims for late settlement interest were not decided on summary judgment and were dismissed from the summary judgment application...

Court Disposition

Summary judgment granted in part for specific performance of transfers; summary judgment dismissed for claims for interest for late settlement; further case management directed

Orders

  • By 10 August 2018 defendants Robert Warwick Francis and Deborah Margaret Francis shall sign and deliver to the partnership's lawyer A&I forms and land transfer tax statements for transfer of the garden centre to the plaintiffs and for transfer of the Waihi bach to the defendants
  • Within ten working days of the partnership's lawyer advising that new titles have issued for the Waimauku properties, defendants shall sign and deliver to the partnership's lawyer A&I forms and land transfer tax statements to transfer: (i) the Wong block and the 17 acre block (subject to boundary adjustments) to...