BAHRAMITASH V KUMAR SC CIV 23/2004

BAHRAMITASH V KUMAR SC CIV 23/2004

Where a vendor by words or conduct has unambiguously indicated an unwillingness or inability to accept a contractually proper tender, the purchaser need not make a formal tender; here contemporaneous solicitor communications established such futility so the vendor was in default and the purchasers were entitled to specific performance.

Citation
openlaw-4c14ec9c_f28b_4c1f_ade4_71d43d85337b.pdf
Parties
Appellant (vendor): Parsoa Bahramitash; Respondent (purchaser): Satish Kumar; Respondent (purchaser): Sunila Kumar
Court
Supreme Court
Jurisdiction
New Zealand
Judgment Date
21 June 2005
Procedural Posture
Civil Appeal to Supreme Court (specific Performance) / Final Judgment on Appeal
Outcome
Appeal dismissed; decree of specific performance varied as set out in orders
Legal Topics
Specific Performance, Tender and Settlement, Risk of Loss, Contractual Remedies, Contract Interpretation
Property Law Contract Law Equity Civil Procedure Specific Performance Tender and Settlement Risk of Loss Contractual Remedies +1 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 4 Authorities cited 7 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Parsoa Bahramitash

Appellant (vendor)

Satish Kumar

Respondent (purchaser)

Sunila Kumar

Respondent (purchaser)

Procedural Posture

Civil Appeal to Supreme Court (specific Performance) / Final Judgment on Appeal

Legal Issues

  1. 1 Whether the vendor validly cancelled the contract
  2. 2 Whether purchasers were required to make a formal tender or whether tender would have been futile
  3. 3 Whether clause 4.2(2) provided an exclusive remedy for damage not rendering property untenantable

Ratio Decidendi

Where a vendor by words or conduct has unambiguously indicated an unwillingness or inability to accept a contractually proper tender, the purchaser need not make a formal tender; here contemporaneous solicitor communications established such futility so the vendor was in default and the purchasers were entitled to specific performance.

Court Disposition

Appeal dismissed; decree of specific performance varied as set out in orders

Orders

  • The appeal is dismissed save that the decree of specific performance made by the Court of Appeal is varied as follows.
  • The date on which settlement is to take place is to be 5 July 2005. Interest is to be payable by the appellant as from 11 September 2003 to 5 July 2005 in accordance with cl 3.10(2) of the General Terms of Sale of the Agreement for Sale and Purchase.