Swetman & Anor v Globe Holdings Limited [2005] NZCA 241 (17 October 2005)

Last Updated: 14 December 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA81/05

BETWEEN ROBERT JAMES SWETMAN
First Appellant

AND WESTHAM HOLDINGS LIMITED
Second Appellant

AND GLOBE HOLDINGS LIMITED
Respondent

Hearing: 12 October 2005

Court: Robertson, Baragwanath and Heath JJ

Counsel: J Dorbu for Appellants
P W Michalik for Respondent

Judgment: 17 October 2005

JUDGMENT OF THE COURT

A Leave to adduce further evidence is refused.

B The appeal is dismissed.

C Costs are awarded in favour of the respondent, to be paid by the appellants (jointly and severally), in the sum of $3,500 together with usual disbursements.

REASONS

(Given by Heath J)

The appeal

[1]	Mr Swetman and Westham Holdings Ltd (Westham) appeal against an order for specific performance made on 4 May 2005 in the High Court at Hamilton. By that order, they were required to perform an agreement for sale and purchase of land (the agreement) dated 4 December 2004.

Background

[2]	The agreement evidenced the sale of a property situated at 430 Oneriri Road, Kaiwaka by Globe Holdings Ltd (Globe) to Mr Swetman and Westham.
[3]	The purchase price was $12,500,000. A deposit of $1,000,000 was to be paid. That deposit was payable in two tranches, an initial deposit of $500,000 within two days of the execution of the agreement and a further $500,000 payable by 28 February 2005. All sums were expressed as "plus GST (if any)". Settlement of the sale was intended to occur contemporaneously with the giving of possession of land on 30 March 2005.
[4]	The first tranche of the deposit was not paid on due date. Without prejudice to the vendor’s rights and remedies, notice was given to the purchasers’ solicitors that the initial deposit must be paid by 13 December 2004. The deposit was not paid.
[5]	On 16 December 2004, a letter was sent by Globe’s solicitors to the solicitors for Mr Swetman and Westham. It is agreed that the letter evidences a variation to the agreement. The 16 December 2004 letter confirmed the original terms of the agreement subject to the variations indicated.
[6]	An amended Statement of Claim was later filed. It placed reliance on the variation. The variation was pleaded in these terms:

By the December letter the terms of variation of the agreement sought by [Westham and Mr Swetman] were set out per [Globe’s] solicitors understanding. The varied terms requested by [Westham and Mr Swetman] were recorded as follows:

(a)	Immediate payable of a deposit of $500,000.00;
(b)	A further deposit payment of $500,000.00 on or before 20 January 2005;
(c)	A further deposit payment of $500,000.00 on or before 3 March 2005;
(d)	Settlement deferred until 31 May 2005;
(e)	Purchase price increased to $13,000,000.00 plus GST.

The initial deposit contemplated by the variation was not paid.

[7]	Globe issued summary judgment proceedings in the High Court to seek specific performance of the agreement (as varied). Alternatively, an inquiry into damages was sought. Those proceedings were filed on or about 22 December 2004.
[8]	The application for summary judgment was heard by Associate Judge Faire on 3 May 2005. In a judgment given on 4 May 2005, the Judge made an order that Westham and Mr Swetman perform the agreement, as varied.
[9]	Mr Swetman and Westham appeal against the order for specific performance. The questions raised on appeal are:

a) Is the agreement for sale and purchase binding on Mr Swetman?
b) Is the agreement conditional upon Globe applying for and obtaining a resource consent for the subdivision of the land?
c) If the answer to (b) is yes, has the agreement been breached by Mr Swetman and Westham?

All three issues go to the question whether an order for specific performance ought to have been made.

Application to adduce additional evidence

[10]	Mr Swetman and Westham seek leave to adduce additional evidence on appeal. That additional evidence is contained in an affidavit sworn by Mr Swetman on 15 September 2005. The application is opposed.
[11]	The jurisdiction for this Court to grant leave to adduce further evidence is set out in r 24 of the Court of Appeal (Civil) Rules 1997.
[12]	In Lawrence v Bank of New Zealand [2001] NZCA 375; (2001) 16 PRNZ 207 (CA), the issue of admission of further evidence on a summary judgment application was considered. At [18], the Court said:

Finally, we record that even if there were now some evidence to support Mr Lawrence's allegations, there would remain the difficulty that the allegedly fresh evidence on which the likelihood of the success of his intended appeal would be dependent is not fresh and is largely inadmissible hearsay. It is well settled that this Court will not admit evidence on appeal under r 24 of the 1997 Rules unless the evidence could not with reasonable diligence have been obtained for use in the Court below, is cogent and is credible: Airwork (NZ) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 641; Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190. In this case we are satisfied the material which Mr Lawrence sought to adduce could, had reasonable diligence been exercised, have been put before the Master. Litigation would never come to an end if the parties to cases were permitted to adduce further evidence in less than exceptional cases. Particular weight must be accorded to the need for finality in litigation in this context in summary judgment proceedings, whose purpose it is to permit unmeritorious claims and defences to be brought justly and efficiently to a swift end. (emphasis added)

[13]	Applying those principles, we are not prepared to permit further evidence to be adduced because:

a) Much of the proposed evidence is not relevant to a fact in issue in the proceeding.
b) Most of the evidence is not fresh; it was available when the application was heard in the High Court;
c) Such evidence as is not fresh or relevant is inadmissible: for example, the hearsay evidence from (unnamed) finance companies stating their belief that the agreement was conditional on subdivisional consent.

[14]	Leave to adduce further evidence is refused.

The High Court judgment

[15]	Judge Faire had some difficulty in understanding why the application for summary judgment was opposed. In their notice of opposition to the application for summary judgment, Mr Swetman and Westham stated that they had affirmed the agreement, as varied. They added that they had never refused to perform the agreement and that there was no need for an order for specific performance to be made.
[16]	The Judge found that, at the time the application for summary judgment was filed, Mr Swetman and Westham were in breach of their obligations to pay the initial deposit.
[17]	His Honour also found that there was no merit in Mr Swetman’s contention that he was not a party to the agreement. At [17] the Judge said:

Quite the reverse is the case, where Mr Swetman uses the term "defendants" to refer to [Westham] and himself throughout [his affidavit] and, in particular, confirms his expectation that both will perform the contract.

[18]	The Judge held that this was a case in which it was appropriate to permit amendment to the application for summary judgment because of the subsequent variation. In doing so he relied on Cegami Investments Ltd v AMP Financial Corporation (NZ) Ltd [1990] 2 NZLR 308 (CA). There is no longer any challenge to the exercise of the Associate Judge’s discretion to permit an amendment to the claim.
[19]	In conclusion, Judge Faire stated:

[21] The position in summary, then, is:

a) The defendants have failed to make payments required under both the original and varied sale and purchase contracts. That is clearly a breach of the contracts;
b) The defendants point to no prejudice in the event that a decree of specific performance is made against them;
c) The plaintiff, by counsel, confirms the plaintiff's readiness and willingness to settle the transaction as at 31 May 2005;
d) No reason has been advanced which would justify me not ordering a decree of specific performance in this case. For example, there is no suggestion of a lack of finance or other inability to settle.

[20]	An order for specific performance was made. Mr Swetman and Westham were ordered to pay the sum of $1,500,000 "forthwith on the issue of" the judgment and to settle the transaction on 31 May 2005.
[21]	Mr Dorbu has confirmed to us that settlement has not been effected in terms of the order. Nor have the deposits been paid.

Analysis of grounds for appeal

(a) Whether agreement binding on Mr Swetman

[22]

Mr Dorbu, for Mr Swetman, renewed a submission that Mr Swetman is not a party to the agreement.

[23]

The argument is untenable. Mr Swetman signed the agreement. Although, he wrote under his name, "Robert Swetman, Director", the document clearly demonstrates that he was a purchaser in his own right. In addition, the language employed in his affidavit in opposition to the summary judgment application tends strongly to confirm that he is a contracting party. There is no suggestion in his affidavit that he was not a contracting party or that the vendor knew that he was not. Among other things, Mr Swetman (after referring to the purpose of the variation) deposed:

... To compensate for the extension of time before settlement and payment of the deposit, the First and Second Defendants offered to the Plaintiff an additional sum of $500,000 on top of the agreed purchase price, bringing the total purchase price to $13,000,000 plus GST from the original agreed price of $12,500,000 plus GST. ....

[24]	The agreement evidences an intention on the part of Mr Swetman to bind both himself and Westham, the company of which he was a director. No doubt the purpose of adding his capacity as director was to disclose the basis on which he had authority to bind the company to the transaction.
[25]	Before us, Mr Dorbu argued further that Mr Swetman could not as a matter of law be a joint purchaser of the land because of the fiduciary obligations he owed to the company. There is nothing in this point. Whatever may be the position in law as between Mr Swetman and his company (Westham), it could not affect the ability of Globe to contract with both as joint purchasers.
[26]	This ground of appeal fails.

(b) Conditional agreement

[27]	This point does not seem to have been raised in the High Court. Indeed, in his affidavit in opposition to the application, Mr Swetman (who described himself as having been "in the property business for over 25 years") deposed that:

4. I am not aware of any facts such as would lead any reasonable person in the shoes of the plaintiff to conclude that the Agreement has been breached or that the defendants would not perform it. To the best of my knowledge, there is no reason why the Agreement should not be concluded on 31 May 2005 as agreed.

There is nothing in Mr Swetman’s affidavit in opposition to suggest that the agreement was subject to any condition, let alone one that would relieve the appellants from paying the deposits.

[28]

Judge Faire was influenced in making an order by assurances from counsel for Globe that it was ready and willing to settle the agreement as varied on 31 May 2005. It is necessary for us to consider the "conditional contract" point because, if resolved in the appellants’ favour, it goes directly to ability to settle. Reciprocal performance of obligations is important: an order for specific performance will not (generally) be made unless the party seeking to enforce the agreement is ready, willing and able to perform its contractual obligations.

[29]

In supplementary submissions made at the hearing, Mr Dorbu argued that the agreement was subject to s 225 of the Resource Management Act 1991. Section 225(1) and (2) provide:

225 Agreement to sell land or building before deposit of plan
(1) Any agreement to sell any land or any building or part of any building that constitutes a subdivision and is made before the appropriate survey plan is approved under section 223, shall be deemed to be made subject to a condition that the survey plan will be deposited under the Land Transfer Act 1952 or in the Deeds Register Office, as the case may be; and no such agreement is illegal or void by reason that it was entered into before the survey plan was deposited.
(2) Subject to subsection (1), any agreement to sell any allotment in a proposed subdivision made before the appropriate survey plan is approved under section 223 shall be deemed to be made subject to the following conditions:

(a) That the purchaser may, by notice in writing to the vendor, cancel the agreement at any time before the end of 14 days after the date of the making of the agreement:
(b) That the purchaser may, at any time after the expiration of 2 years after the date of granting of the resource consent or one year after the date of the agreement, whichever is the later, by notice in writing to the vendor, rescind the contract if the vendor has not made reasonable progress towards submitting a survey plan to the territorial authority for its approval or has not deposited the survey plan within a reasonable time after the date of its approval.

(emphasis added)

[30]	The term "subdivision of land" is defined by s 218(1) of the Resource Management Act as follows:

218 Meaning of "subdivision of land"
(1) In this Act, the term subdivision of land means--
(a) The division of an allotment--

(i) By an application to a District Land Registrar for the issue of a separate certificate of title for any part of the allotment; or

(ii) By the disposition by way of sale or offer for sale of the fee simple to part of the allotment; or

(iii) by a lease of part of the allotment which, including renewals, is or could be for a term of more than 35 years; or

(iv) By the grant of a company lease or cross lease in respect of any part of the allotment; or

(v) By the deposit of a unit plan, or an application to a District Land Registrar for the issue of a separate certificate of title for any part of a unit on a unit plan; or

(b) An application to a District Land Registrar for the issue of a separate certificate of title in circumstances where the issue of that certificate of title is prohibited by section 226,--

and the term subdivide land has a corresponding meaning.

[31]	Mr Dorbu submitted that the condition imposed by s 225(1) had not been met by the vendor and, therefore, there was no need for the purchasers to perform obligations under the agreement until such time as the survey plan had been deposited under the land Transfer Act 1952. Whether that submission is right or wrong in relation to completion of the contract, it could not affect the obligation to pay the deposits: cl 2.4 of the agreement.
[32]	The question whether s 225 applies must be determined by reference to the bargain made by the parties as recorded in their agreement.
[33]	The starting point is Globe’s promise to sell land at 430 Oneriri Road, Kaiwaka. That promise is qualified by cl 31 of the agreement, which provides:

31.0 EXCLUDED LOTS
31.1 The Purchaser acknowledges that Lots 1A, 1B, 4 and 5 as shown on the attached plan ("the Excluded Lots") are not included in this Agreement. The Purchaser further acknowledges that the Purchaser is required to subdivide the land to create to separate certificates of titles for the Excluded Lots, to further create legal and appropriate physical access to the Excluded Lots and to transfer the titles of the Excluded Lots to the Vendor or the Vendor’s nominee.

[34]	Clause 32.0 and 32.1 cast obligations on the purchasers to proceed with the subdivision:

32.0 [PURCHASER] TO PROCEED WITH SUBDIVISION
32.1 The Purchaser shall at the Purchaser’s expense as soon as practicable:

(a)	Obtain a subdivision consent for the lots generally in accordance with the attached plan ("the Lots").
(b)	Prepare and submit the survey plan to the appropriate authority for consent to the subdivision.
(c)	Implement the subdivision consent for the Lots.
(d)	Carry out all work necessary to deposit the survey plan, issue freehold titles and create legal and appropriate physical access to the Lots.
[35]	The word "Purchaser" (which we have placed in square brackets and in bold) represents a handwritten change to the agreement which was initialled by both parties. Prior to initialling, the heading to cl 32.1 stated the subdivision requirement to be a vendor’s obligation. However, the terms of cl 32.1 make it clear that the obligation to obtain subdivisional consent was always on the purchaser.
[36]	Clause 34.0 of the agreement deals with the situation that would arise in the event that title to the various lots had not issued by 30 November 2007. The clause, relevantly, states:

... The Vendor hereunder may at its sole discretion give notice in writing to the Purchaser releasing the Purchaser from the obligations to transfer the certificates of title of the Excluded Lots to the Vendor or the Vendor’s nominee in consideration for which the Purchaser shall pay to the Vendor the sum of $1,000,000 (plus GST if any) such sum to be paid within 10 working days of the Vendor giving notice as aforesaid releasing the Purchaser of its obligations.

[37]	The agreement is a commercial contract and must be interpreted in a manner that reflects the parties’ commercial intentions. Although the nature of the transaction is unusual, we are satisfied that the contractual terms (when read together) spell out the overall effect in a sufficiently clear way.
[38]	We read the agreement as providing for the sale of all of the land situated at 430 Oneriri Road, Kaiwaka in consideration for the (varied) purchase price of $13,000,000. On settlement date, the purchasers are obliged to pay the whole of the purchase price (less any deposits that ought to have been paid prior to that date) and the vendor is required to convey the whole of the land to the purchasers. The purchasers must then hold the "Excluded Lots" for the benefit of the vendor and re-convey them to the vendor on issue of the title to the lots following deposit of the subdivision plan. The vendor may release the purchasers from the obligation to re-convey those lots back to it on the basis that, in lieu of the land, it receives the sum of $1,000,000, plus GST (if any), to be paid within 10 working days of notice being given under cl 34.
[39]	In our view, s 225 has no application to the present case because the agreement does not purport to sell land "that constitutes a subdivision". Rather, the whole land is sold upon terms requiring re-conveyance of part of it once the survey plan has been deposited under the Land Transfer Act 1952. It follows that there is nothing in s 225 of the Resource Management Act that would have prevented settlement from being effected on 31 May 2005 as ordered by the Associate Judge.
[40]	In those circumstances, the Judge was entitled to regard the agreement as unconditional.

(c) Has the agreement been breached by Mr Swetman and Westham?

[41]	The deposits payable under the agreement (as varied) have not been paid. The purchase was not settled on 31 May 2005. The agreement is unconditional.
[42]	At the time judgment was given in the High Court, the purchasers were in breach of their obligation to pay the two deposits in terms of the agreement as varied.
[43]	The purchasers are now also in breach of their contractual obligations under the agreement to settle the purchase.

Result

[44]	There being no arguable defence to the claim, Judge Faire was right to enter summary judgment and to make an order for specific performance.
[45]	The appeal is dismissed. We award costs in favour of Globe against Mr Swetman and Westham (jointly and severally) in the sum of $3,500 together with usual disbursements.

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