SPECIFIC PERFORMANCE

New Zealand Times, Volume XXXVI, Issue 8188, 1 August 1912, Page 5

SPECIFIC PERFORMANCE

CANNOT BE ENFORCED. THE CASE OF MIEAMAE, LTD. Judgment was delivered by the Court, of Appeal yesterday in the case of Heathcote Beetham Williams, Dudley Bruce Hill and Arthur Spry Gwavas .Cariyon v. Miramar Ltd. The case —an exceedingly complex one—had been the subject of exhaustive argument: in the Supreme Court prior to going before the Court of Appeal. The appellants, as plaintiffs in the Supreme Court, sued for specific relief. They claimed that by a deed dated March 21st, 1908, in consideration of their guaranteeing an overdraft of 414835 at the Bank of Now South Wales for the Miramar Athletic Park and Wonderland Company, the> defendant company agreed that if the guarantee were not discharged by March 31st, 1909, they would either allow plaintiffs to remove the buildings and fixtures other than the fences at Wonderland, or, in the alternative, would pay to them the sum of 412351 5s and take over . the land and buildings belonging to the Wonderland Company, thus terminating the agreement. In the event of the former course being adopted, the contract to purchase between Miramar, Ltd., and the Wonderland Company was to be terminated. The Wonderland Company had purchased from the defendant company some thirty-nine acres and had paid the sum of 412351 ss, but had defaulted in regard to further instalments and interest. By the terms of the deed Miramar, Ltd., agreed not to enforce these payments until March 31st, 1909. Plaintiffs now alleged that when, that date arrived an agreement was entered into whereby the matter was 'still further deferred, and that lengthy negotiations took place without an agreement being arrived at. Plaintiffs, therefore, called upon Miramar, Ltd., to pay the sum of 412351 5s in terms of the agreement of 1908, or to specifically perform their part of the contract. Judgment in this action was given by Mr Justice Edwards for the defendant company! From this decision the plaintiffs appealed. The case was heard before their Honors the Chief Justice (Sir Robert Stout), Mr Justice Denniston, Mr Justice Cooper and Mr Justice Chapman.

In giving his decision yesterday his Honor tho Chief Justice expressed the opinion that the right of election by a particular date had been' suspended on account of the negotiations between the parties, and that the appeal should • be allowed.

Their Honors Mr Justice Cooper and Mr Justice Chapman did not think the negotiations could be relied upon. They extended over an unduly long period. The respondent company did not seem to assent to anything. The delay was due chiefly to tolerance on the part of the plaintiff. The true meaning of the deed of adjustment was that there were two methods of , election. In their Honors’ opinion, however, the option was gone, and with it appellants’ right of action. Mr Justice Denniston adopted a similar view to that taken by Mr Justice Cooper and Mr Justice Chapman. The appeal was therefore dismissed with, costs on the highest scale. At the hearing Mr C. P. Skerrett, K.C., with him Mr C. B. Morison, appeared tor the appellants and Mr H. D. Bell, K.C., with him Mr C. H. Treadwell, for the respondent company.