PENALTY OF DELAY

New Zealand Herald, Volume LXXIII, Issue 22580, 19 November 1936, Page 15

PENALTY OF DELAY

FARM SALE CONTRACT LEGAL RIGHTS ENFORCED JUDGE REGRETS DECISION The hearing of a, claim against the Public Trustee for .specific performance of an agreement for sale of land and for £J 00 damages was concluded before Mr Justice Fair in the Supreme Court yesterday. The agreement was made in February, ]927, between the Public Trustee, an executor of a will (Mr. J. B. Johnston), and two farmers, Walter Henry Poolnian and Frederick Henry Poolinan, of Whangarci (Mr. S. C. Thorne). The original agreement fixed the price of the land at £ISOO with provision for a reduction to £IOOO if that amount was paid at a certain date and certain other conditions complied with. Tho chief question in dispute was whether the plaintiffs were entitled to tho full reduction of £SOO, to which uiie of the beneficiaries would not agree Tho Public Trustee had refused to execute a transfer of tho land. Evidonco was given by an estate clerk in the Public Trust olficc that he had told one of the plaint ill's that he did not think it likely the £SOO would be called on, but he had not given him any assurance on that point. Mr. Johnston submitted that any oral arrangement could not have tho effect of enlarging the date of performance.

His Honor in giving judgment nonsuiting the plaintiffs, said the contract provided for a reduction in the amount of the purchase money by £SOO if tho balance of £IOOO was paid before July 14, 193(3. That balance was offered by tho plaintiffs on some date between August 4 and August 17, but the Public Trustee was unable to accept this because one of the three beneficiaries declined to agree to waive the delay. His Honor held that payment of tho balance of £IOOO before July 14 was an essential condition to the reduction of die amount due. The plaintiffs were not entitled to specific performance upon payment of the lower sum. "1 regret being compelled, to this conclusion," said His Honor, "because the delay was not great, but 1 am obliged to give a decision by what 1 believe to be the legal rights. It does seem very hard on tho plaintills that because of a delay of something like three weeks, a delay which caused no loss to the estate, they should be called on to pay an additional sum of £SOO. However, they are legally bound to do that, unless some concession is made bv the defendant."

Mr. Johnston said he was informed that the concession previously offered was still likely to lie forthcoming. His Honor: I am glad to know that.