SUDA GROUP LTD V WONG HC AK CIV-2004-404-3904

SUDA GROUP LTD V WONG HC AK CIV-2004-404-3904

Because new titles had not issued and the purchaser was also in default, the vendor had not been in a position of being solely unable or unwilling to give vacant possession on 24 March 2004; accordingly clause 3.10 did not operate to require penalty interest from that date and, on the facts, the Court declined to exercise its discretion to award such interest; the plaintiff's claim for penalty interest was dismissed.

Citation
openlaw-c211b74f_7760_4f67_8e4f_c54c06a87644.pdf
Parties
Plaintiff: SUDA GROUP LIMITED; Defendants: SEE WAI WONG AND PUTI YING WONG
Court
High Court
Jurisdiction
New Zealand
Judgment Date
28 November 2006
Procedural Posture
Specific Performance / Contract for Sale of Land / Post Judgment Application Concerning Penalty Interest Following Decree of Specific Performance
Outcome
Plaintiff's claim for penalty interest dismissed
Legal Topics
Specific Performance, Penalty Interest, Vendor Default, Late Settlement, Contractual Interpretation
Property Law Contract Law Civil Procedure Equity Specific Performance Penalty Interest Vendor Default Late Settlement +1 more

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Parties

SUDA GROUP LIMITED

Plaintiff

SEE WAI WONG AND PUTI YING WONG

Defendants

Procedural Posture

Specific Performance / Contract for Sale of Land / Post Judgment Application Concerning Penalty Interest Following Decree of Specific Performance

Legal Issues

  1. 1 Whether the vendor was liable to pay contractual penalty interest from 24 March 2004 under cl 3.10 of the ADLS form
  2. 2 Whether settlement could be treated as late for purposes of clause 3.10 where titles had not issued and the purchaser was partially in default
  3. 3 Whether the Court should exercise its discretion to award interest despite contractual provisions and factual delays shared by parties

Ratio Decidendi

Because new titles had not issued and the purchaser was also in default, the vendor had not been in a position of being solely unable or unwilling to give vacant possession on 24 March 2004; accordingly clause 3.10 did not operate to require penalty interest from that date and, on the facts, the Court declined to exercise its discretion to award such interest; the plaintiff's claim for penalty interest was dismissed.

Court Disposition

Plaintiff's claim for penalty interest dismissed

Orders

  • Plaintiff's claim for penalty interest dismissed
  • No order for costs