TAMAHERE LIFESTYLE LIMITED V WHITE SWAN PROPERTIES LIMITED HC HAM CIV 2008-419-1379 [2009] NZHC 341 (18 March 2009)

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY
                                                             CIV 2008-419-1379



              BETWEEN                    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 J




Solicitors:
Ellice Tanner, PO Box 19-144, hamilton
Cooney
Law, PO Box 369, Cambridge
Counsel:
D M O'Neill, PO Box 815, Hamilton

TAMAHERE LIFESTYLE LIMITED V WHITE SWAN PROPERTIES LIMITED
HC HAM CIV 2008-419-
1379 18 March 2009

[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 is

concerned, 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