RONALD JOHN ZWARST, LISA TRACY ZWARST AND CHRISTOPHER JOHN SAXTON V DAVID ANTHONY SAXTON HC GRY CIV-2012-418-000085

RONALD JOHN ZWARST, LISA TRACY ZWARST AND CHRISTOPHER JOHN SAXTON V DAVID ANTHONY SAXTON HC GRY CIV-2012-418-000085

The defendant has no arguable defence: the prior High Court caveat judgment estops the defendant on the limitation point and explained delay; the evidence (including defendant's prior affidavits and cross-examination) establishes the existence and authenticity of the 2001 agreements and that they are enforceable;...

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Citation
openlaw-ea675d11_c90b_4b59_b63a_9743e9a55b8e.pdf
Parties
Plaintiff: Ronald John Zwarst; Plaintiff: Lisa Tracy Zwarst; Plaintiff: Christopher John Saxton; Defendant: David Anthony Saxton
Court
High Court
Jurisdiction
New Zealand
Judgment Date
1 March 2013
Procedural Posture
Civil Specific Performance of Contract (property) / Summary Judgment Application
Outcome
Summary judgment granted for plaintiffs ordering specific performance of the two sale agreements
Legal Topics
Specific Performance, Issue Estoppel / Res Judicata, Limitation Periods / Laches, Caveat Protection, Frustration, Non Est Factum, Trust Formation and Ratification, Summary Judgment
Contract Equity Property Civil Procedure Trusts Criminal Forfeiture (proceeds of Crime) Specific Performance Issue Estoppel / Res Judicata +6 more

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Parties

Ronald John Zwarst

Plaintiff

Lisa Tracy Zwarst

Plaintiff

Christopher John Saxton

Plaintiff

David Anthony Saxton

Defendant

Procedural Posture

Civil Specific Performance of Contract (property) / Summary Judgment Application

Legal Issues

  1. 1 Whether summary judgment is appropriate
  2. 2 Whether 2001 agreements for sale are enforceable
  3. 3 Applicability of Limitation Act to claim for specific performance

Ratio Decidendi

The defendant has no arguable defence: the prior High Court caveat judgment estops the defendant on the limitation point and explained delay; the evidence (including defendant's prior affidavits and cross-examination) establishes the existence and authenticity of the 2001 agreements and that they are enforceable; other defences (non est factum, frustration, trust non-existence, uncompleted gift, trustee consent, disclosure) are not tenable as a matter of fact or law; summary judgment for specific performance is therefore appropriate.

Court Disposition

Summary judgment granted for plaintiffs ordering specific performance of the two sale agreements

Orders

  • Defendant to specifically perform the agreement dated 7 November 2001 between himself and the M D Saxton Family Trust for land in Certificate of Title WS8C/1369 on payment of the consideration of $20,000
  • Defendant to specifically perform the agreement dated 7 November 2001 between himself and the L T Saxton Family Trust for land in Certificate of Title WS8C/1370 on payment of the consideration of $20,000