Gordon Campbell | Parliament TV | Parliament Today | News Video | Crime | Employers | Housing | Immigration | Legal | Local Govt. | Maori | Welfare | Unions | Youth | Search

 


Swetman and Westham Holdings v Globe Holdings

Swetman and Westham Holdings Limited v Globe Holdings Limited Sc 69/2005 [27 March 2006]

IN THE SUPREME COURT OF NEW ZEALAND
SC 69/2005
[2006] NZSC 12

BETWEEN ROBERT JAMES SWETMAN AND
WESTHAM HOLDINGS LIMITED
Applicants
AND GLOBE HOLDINGS LIMITED
Respondent

Court: Elias CJ, Blanchard and Anderson JJ
Counsel: J E Dorbu for Applicants
P W Michalik for Respondent
Judgment: 27 March 2006

JUDGMENT OF THE COURT

A. The application for leave to appeal is dismissed.

B. Costs to the respondent of $2,500.

REASONS
[1] This is an application for leave to appeal from a judgment dismissing an appeal to the Court of Appeal from the entry of summary judgment in the High Court. This Court has considered the written submissions in support of and in opposition to this application and has determined that it is unnecessary to have oral submissions.

[2] The applicants, as purchasers under an agreement for the sale of land, were required to pay a deposit. They failed to do so. The respondent then obtained summary judgment for specific performance.

[3] The vendor had wished to retain part of the transferred land. The mechanism for achieving this was a covenant by the purchasers to subdivide and transfer title to that part following conveyance of the whole area by the vendor. Amongst specific steps the purchasers had to take was the preparation and submitting of a survey plan to the appropriate authority for consent to the subdivision. One of the arguments now raised on behalf of the applicants is that the vendor itself has submitted a survey plan and has thereby pre-empted the applicants’ ability to do so. Why that should be so is not adequately explained and, in any event, the issue seems largely factual.

[4] In the High Court the applicants resisted summary judgment for specific performance but did not seek to avoid the contract. On the contrary, they affirmed the contract and said they were prepared to complete.

[5] As the matter was presented in the High Court, there was plainly no impediment to a grant of specific performance. Nevertheless an appeal was brought, coupled with an application to the Court of Appeal to adduce further evidence. That included a valuation report prepared for the vendor by registered valuers and the application made by the vendor for resource consent. The Court of Appeal declined to admit that evidence, principally on the grounds of irrelevance and want of freshness.

[6] The provision for subdivision invokes s 225 of the Resource Management Act 1991, subs (1) and (2) of which deemed the agreement subject to certain conditions about the depositing of a survey plan and cancellation for delay in such depositing. Counsel submitted, in support of the present application, that by virtue of s 225, the obligation to take subdivisional steps lay on the vendor not the purchasers (notwithstanding the specific acceptance of that obligation by the purchasers in terms of the agreement itself); and that even if the burden were on the purchasers, a term must be implied into the contract that it remains conditional on the resource consent being granted.

[7] These arguments do not help the applicants because they are the parties charged under the agreement with the obligation to advance the subdivision. They cannot invoke their own default by seeking to rely on s 225(2) of RMA. Further, it is likely that they would be regarded as effectively the vendor for the purposes of s 225(2) since they are taking the whole of the land and are obliged to subdivide off and convey back a minor part. In any event, the agreement provides its own remedy – payment of additional purchase price – if subdivision cannot be achieved within a fixed period.

[8] The Court of Appeal’s decision not to allow additional evidence was orthodox in principle and unchallengable on its merits. But in any event, that aspect of the Court of Appeal’s judgment engages no principle of general or public importance or of general commercial significance. The substantive decision of the Court of Appeal, which turns on its own facts, also gives rise to no question which meets the criteria for leave stipulated in s 13 Supreme Court Act 2003.

[9] Leave to appeal is declined with costs to the respondents of $2,500.

Solicitors:
Murdoch Hall & Co, Auckland for Applicants
Morrison Kent, Wellington for Respondent

ENDS

© Scoop Media

 
 
 
 
 
Parliament Headlines | Politics Headlines | Regional Headlines

 

Also, Loan Interest: Productivity Commission On Tertiary Education

Key recommendations include better quality control; making it easier for students to transfer between courses; abolishing University Entrance; enabling tertiary institutions to own and control their assets; making it easier for new providers to enter the system; and facilitating more and faster innovation by tertiary education providers... More>>

ALSO:

Higher Payments: Wellington Regional Council Becomes A Living Wage Employer

Councillor Sue Kedgley said she was delighted that the Wellington Regional Council unanimously adopted her motion to become a Living Wage employer, making it the first regional council in New Zealand to do so. More>>

ALSO:

Scoop Images:
Dame Patsy Reddy Sworn In As Governor-General

This morning Dame Patsy Reddy was sworn in as the New Zealand Realm’s 21st Governor-General. The ceremony began with a pōwhiri to welcome Dame Patsy and her husband Sir David Gascoigne to Parliament. More>>

ALSO:

Ruataniwha: DOC, Hawke's Bay Council Developer Take Supreme Court Appeal

The Department of Conservation and Hawke's Bay Regional Investment Company (HBRIC) are appealing to the Supreme Court over a conservation land swap which the Court of Appeal halted. More>>

ALSO:

With NZ's Marama Davidson: Women’s Flotilla Leaves Sicily – Heading For Gaza

Women representing 13 countries spanning five continents began their journey yesterday on Zaytouna-Oliva to the shores of Gaza, which has been under blockade since 2007. On board are a Nobel Peace Laureate, three parliamentarians, a decorated US diplomat, journalists, an Olympic athlete, and a physician. A list of the women with their background can be found here. More>>

Gordon Campbell: On The Key Style Of Crisis Management

At Monday’s post Cabinet press conference Key was in his finest wide- eyed “Problem? What problem?” mode. No, there wasn’t really a problem that top MPI officials had been at odds with each other over the meaning of the fisheries policy and how that policy should be pursued... More>>

ALSO:

Mt Roskill: Greens Will Not Stand In Likely Post-Goff By-Election

“The Green Party’s priority is changing the Government in 2017, and as part of that we’ve decided that we won’t stand a candidate in the probable Mt Roskill by-election... This decision shows the Memorandum of Understanding between Labour and the Green Party is working." More>>

ALSO:

Get More From Scoop

 

LATEST HEADLINES

 
 
 
 
 
 
 
 
 
Politics
Search Scoop  
 
 
Powered by Vodafone
NZ independent news