TAWANUI DEVELOPMENTS LIMITED V DM HARNETT AND JC MALCOLM AND ANOR HC PMN CIV 2008-454-949

TAWANUI DEVELOPMENTS LIMITED V DM HARNETT AND JC MALCOLM AND ANOR HC PMN CIV 2008-454-949

The uncontested expert evidence and acceptance by Horizons Regional Council established the site was remediated before settlement, defendants had no valid defence and could not cancel the Agreement (and had affirmed it); the second defendant's guarantee is valid and trustees are personally liable, therefore summary judgment for specific performance and costs was granted to the plaintiff.

Citation
openlaw-8064914c_a57d_4029_a11b_b644def970a9.pdf
Parties
Plaintiff: Tawanui Developments Limited; First Defendants (purchasers): Dean Michael Harnett and John Colin Malcolm; Second Defendant (guarantor): Dean Michael Harnett
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 May 2009
Procedural Posture
Contract – Specific Performance (summary Judgment) / Summary Judgment Application in the High Court (judgment Delivered 5 May 2009)
Outcome
Summary judgment entered for plaintiff; order for specific performance against the first defendants and the second defendant personally and as trustee of the Poutama Family Trust; costs to plaintiff.
Legal Topics
Specific Performance, Contractual Remedies, Personal Guarantee, Summary Judgment, Contamination and Remediation, Trustee Liability, Duress, Affirmation of Contract
Contract Property Trusts Remedies Environmental Law Specific Performance Contractual Remedies Personal Guarantee +5 more

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Parties

Tawanui Developments Limited

Plaintiff

Dean Michael Harnett and John Colin Malcolm

First Defendants (purchasers)

Dean Michael Harnett

Second Defendant (guarantor)

Procedural Posture

Contract – Specific Performance (summary Judgment) / Summary Judgment Application in the High Court (judgment Delivered 5 May 2009)

Legal Issues

  1. 1 Whether the Agreement was unconditional and entitled plaintiff to specific performance
  2. 2 Whether alleged contamination vitiated the contract or had been remedied before settlement
  3. 3 Whether the second defendant gave a valid personal guarantee and whether it was procured by duress

Ratio Decidendi

The uncontested expert evidence and acceptance by Horizons Regional Council established the site was remediated before settlement, defendants had no valid defence and could not cancel the Agreement (and had affirmed it); the second defendant's guarantee is valid and trustees are personally liable, therefore summary judgment for specific performance and costs was granted to the plaintiff.

Court Disposition

Summary judgment entered for plaintiff; order for specific performance against the first defendants and the second defendant personally and as trustee of the Poutama Family Trust; costs to plaintiff.

Orders

  • Specific performance of the Agreement for Sale and Purchase in favour of Tawanui Developments Limited against the first defendants and the second defendant personally and as trustees of the Poutama Family Trust
  • Costs awarded to the plaintiff against the first defendants and the second defendant on a Category 2B basis together with disbursements as fixed by the Registrar