TAMAHERE LIFESTYLE LIMITED V WHITE SWAN PROPERTIES LIMITED HC HAM CIV 2008-419-1379

TAMAHERE LIFESTYLE LIMITED V WHITE SWAN PROPERTIES LIMITED HC HAM CIV 2008-419- 1379 18 March 2009IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV 2008-419-1379BETWEEN TAMAHERE LIFESTYLE LIMITED Applicant AND WHITE SWAN PROPERTIES LIMITED Respondent Hearing: 18 March 2009 (by telephone) Counsel: D M O'Neill for Applicant S J Chatwin for Respondent Judgment: 18 March 2009(ORAL) JUDGMENT (NO. 2) OF HEATH JSolicitors: Ellice Tanner, PO Box 19-144, hamilton Cooney Law, PO Box 369, Cambridge Counsel: D M O'Neill, PO Box 815, Hamilton[1] Following a hearing on 3 February 2009, I made orders on Tamahere Lifestyle Ltd's application that a caveat not lapse. The orders were conditional in nature. They involved the primary order remaining in force, while further investigations were undertaken into the ability of Tamahere to settle the agreement for sale and purchase with White Swan Properties Ltd. [2] An independent solicitor, Mr Wilson, was appointed to report to the Court on issues relating to ability to pay. The processes contemplated by my order have been completed. Mr Wilson has lodged a report in accordance with the order stating that he is not satisfied that Tamahere will be able to settle the transaction within the anticipated time, namely 7-12 months hence. On that basis, a further hearing was scheduled for today, during which I have heard from counsel by telephone. [3] The first issue is whether the order made on 3 February 2009, that the caveat do not lapse, should be discharged. That order was expressed as being "pending further order of the Court". Further, in Raiser Developments Ltd v Trefoil Properties Ltd [2008] NZCA 73 at [49] and [56], the Court of Appeal made it clear that it was open to reconsider balance of convenience issues, notwithstanding the existence of an arguable case, where circumstances had changed since the original order was made. [4] The earlier order was premised on the ability of Tamahere to settle the agreement. Proper inquiries were to be undertaken into the validity of that assertion. It transpires that an independent solicitor of some commercial experience cannot be satisfied of that. [5] In those circumstances, the balance of convenience has shifted and now favours White Swan Properties Ltd. I make an order discharging the order that the caveat do not lapse. Accordingly, the application is formally dismissed and the District Land Registrar can now attend to removal of the caveat. [6] A question of costs arises. I award costs and disbursements on a 2B basis in favour of White Swan Properties Ltd. So far as the hearing on 3 February 2009 isconcerned, the costs shall be calculated on a half day hearing. There is no certificate for second counsel. All costs and disbursements shall be fixed by the Registrar. ___________________________ P R Heath J