FROST AND HORNE V CARR AND ORS HC DUN CIV 2007-412-507

FROST AND HORNE V CARR AND ORS HC DUN CIV 2007-412-507

The ASA required completion of all interdependent transactions by 4 pm on 31 May 2007 (time being of the essence); the 15-16 May email exchange did not bind the Big Sky or Anesyds receivers and did not vary clause 15; the Carr interests breached the ASA by not completing settlement and were never in a position to settle before cancellation; there was no valid waiver, affirmation or material vendor breach that prevented cancellation; accordingly the Big Sky receivers validly cancelled the ASA and orders for specific performance or equitable relief are refused.

Citation
openlaw-78a5d377_d843_4164_9160_51b2d975f1b2.pdf
Parties
Applicant (receiver): Murray Neil Frost; Applicant (receiver): Michael Craig Horne; First Respondent / First Plaintiff: Ewan Robert Carr; Second Respondent / Second Plaintiff: Brookside Farm Trust Limited; Vendor: Brookside Properties Limited (Styx owner); Third Respondent / Defendant: Jarcel Investments Limited; Third Respondent / Defendant: Awataieri Holdings Limited; Fourth Respondent / Sixth Defendant: Anesyds Limited (In Receivership); Fifth Respondent / First Defendant: Rodney John Humphries; Second Defendant / Vendor (big Sky Group): Big Sky Dairy Farms Limited (In Liquidation); Third Defendant: Cascade Capital Limited; Fourth Defendant: Main Farm Limited; Fifth Defendant: Consultant Management Services Limited (In Receivership)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
29 February 2008
Procedural Posture
Consolidated Civil Proceedings Involving Receivership, Sale of Land and Application for Specific Performance / Judgment Delivered (reserved Judgment) 29 February 2008
Outcome
Judgment for defendants in CIV 2007-412-510; Amended Settlement Agreement treated as validly cancelled by Big Sky receivers; application for specific performance and equitable relief dismissed.
Legal Topics
Specific Performance, Cancellation, Time of the Essence, Waiver, Relief Against Forfeiture, Interdependent Transactions, Settlement, GST Arrangements, Estoppel, Contractual Remedies
Contract Law Receivership Law Equity Property Law Commercial Law Tax Law Specific Performance Cancellation +8 more

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Parties

Murray Neil Frost

Applicant (receiver)

Michael Craig Horne

Applicant (receiver)

Ewan Robert Carr

First Respondent / First Plaintiff

Brookside Farm Trust Limited

Second Respondent / Second Plaintiff

Brookside Properties Limited (Styx owner)

Vendor

Jarcel Investments Limited

Third Respondent / Defendant

Awataieri Holdings Limited

Third Respondent / Defendant

Anesyds Limited (In Receivership)

Fourth Respondent / Sixth Defendant

Rodney John Humphries

Fifth Respondent / First Defendant

Big Sky Dairy Farms Limited (In Liquidation)

Second Defendant / Vendor (big Sky Group)

Cascade Capital Limited

Third Defendant

Main Farm Limited

Fourth Defendant

Consultant Management Services Limited (In Receivership)

Fifth Defendant

Procedural Posture

Consolidated Civil Proceedings Involving Receivership, Sale of Land and Application for Specific Performance / Judgment Delivered (reserved Judgment) 29 February 2008

Legal Issues

  1. 1 What were the contractual settlement terms for each transaction?
  2. 2 Whether the 15-16 May email exchange varied the ASA or estopped parties
  3. 3 Whether the ASA terminated automatically if settlement not by 4 pm on 31 May 2007

Ratio Decidendi

The ASA required completion of all interdependent transactions by 4 pm on 31 May 2007 (time being of the essence); the 15-16 May email exchange did not bind the Big Sky or Anesyds receivers and did not vary clause 15; the Carr interests breached the ASA by not completing settlement and were never in a position to settle before cancellation; there was no valid waiver, affirmation or material vendor breach that prevented cancellation; accordingly the Big Sky receivers validly cancelled the ASA and orders for specific performance or equitable relief are refused.

Court Disposition

Judgment for defendants in CIV 2007-412-510; Amended Settlement Agreement treated as validly cancelled by Big Sky receivers; application for specific performance and equitable relief dismissed.

Orders

  • Counsel to advise whether any formal directions to the Big Sky Group receivers are required in CIV 2007-412-507
  • If order required for discharge of caveats lodged by Mr Carr, counsel to advise