SUPREME COURT Dispute Over Purchase Of Dunsandel Farm

Press, Volume CVI, Issue 31097, 28 June 1966, Page 14

SUPREME COURT Dispute Over Purchase Of Dunsandel Farm

The hearing of a writ to enforce a contract of sale of a 50-acre farm at Dunsandel for £ll,OOO was begun before Mr Justice Macarthur in the Supreme Court yesterday, and will continue today. Enforcement of the contract—and £914 damages for Joss of returns from expected farming operations—"was sought by Donal Roy Baker, a farmer and orchardist, and his wife, Dianna Natalie Baker, a nurse (Mr R. J. de Goldi) against David Alister McLaughlin, a farmer and contractor, with whom the : Bakers had signed a contract, ■on June 2. 1965, for the purchase of his Dunsandel farm. | As an alternative, failing a writ to enforce the contract, the Bakers sought £4OOO general damages.

McLaughlin, through Mr J. G. Leggat, with him Mr A. Hearn, counter-claimed for j£1339 15s damages for the ‘ Bakers’ alleged breach of contract in not settling it on time. Extension Of Time

After the Bakers had sought an extension of time of the settlement date, September 30 —by which time McLaughlin had moved out of his house on the property, and held a clearing sale of his plant and equipment—McLaughlin sent them a letter on October 22 making time the essence of the contract, and calling on | them to settle it by October 29, and a further letter on I November 19 “purporting to the contract." The Bakers, said Mr de Goldi, then made a personal approach to McLaughlin, asking him to accept settlement on December 30, but his refusal to consider this had led to the present proceedings. The extension of time from September 30, said Mr de Goldi had been sought because' the Bakers had not managed to sell their own property near Kaiapoi. Baker later gave evidence that he wanted to quit it because it was affected by the new northern motorway. The Bakers had proposed to meet the purchase price of McLaughlin’s farm by taking £6OOO first mortgage on it, and £5OOO from their Kaiapoi nropertv—the latter sold on December 1 for £9OOO, said Baker, although its mortgage indebtedness was £4OOO.

The Bakers claimed that McLaughlin had agreed to the extension of time —confirmed by his solicitors in a letter of September 13—and that this was an indefinite extension, said Mr de Goldi. They claimed that McLaughlin’s letter of October 22 could not operate to make time the essence of contract because there had been no undue delay over it, or, alternatively, no delay at all. They claimed an implication in the letter that McLaughlin would accept settlement after October 29, provided any loss suffered by him was made good. They claimed that various

entries made on to McLaughlin’s property to plant a potato crop—in anticipation of possession, and with McLaughlin’s permission—created for them a licence coupled with an equity, obliging him to complete the contract, and not defeat their equitable rights. Claimant’s Evidence

Baker, in evidence on his claim, as outlined, and in a long cross-examination, was in the witness-box almost all day.

Asked by Mr Leggat why he had not settled the contract on September 30, Baker said: “Because I had an extension of time.”

Mr Leggat put it to him that the real reason was that he could not pay McLaughlin, and never could pay him, until November 30. Baker said he could have paid “a few days” before this, when he had made his personal approach to McLaughlin. Baker agreed that he had signed a previous contract on May 7 to buy McLaughlin’s farm, which contract was conditional on his being able to raise finance to his own satisfaction. The second contract, on June 2, had no such condition.

Mr Leggat: What happened between the abandonment of the first contract and June 2 that led you to sign an unconditional contract to buy the same land?

Baker: We actually had people look at our place, and answering advertisements, and we knew ourselves that our land could definitely be sold.

Asked why the deposit had been reduced from £lOOO in the first contract to £250 in

the contract of June 2, Baker said he had had outgoings about that time with pickingup his potato crop—and apart from the proposed mortgage, and sale of his Kaiapoi land, would have had only £lOOO “plus” of his own money to put into the Dunsandel property.

Asked why, if he considered he had had an extension of time to settle the contract, he had asked McLaughlin on November 22 for further time. Baker said: “I don’t know.” Mr Leggat: You were asking for further time to carry out your obligations to Mr McLaughlin?—Tes. “Could Not Have Paid” i Baker agreed he could not ihave paid his cheque on November 22, and had wanted an extension of time. Why didn’t you settle on September 30?—Because I had an extension of time. Leaving aside that answer, I put it to you it was because you could not pay, and never could pay, until November 30?—I could have paid a few days before. “Do you think it’s fair to come to this, or any. Court and claim damages for something you couldn’t do because you couldn’t pay?” asked Mr Leggat. Baker: Considering all the difficulties we have had, yes. Mr McLaughlin has had no difficulties, too?—I wouldn’t say that. Baker’s wife, also a plaintiff in the action, was giving evidence when the hearing was adjourned to this morning. As a result of not being permitted to complete the purchase of the Dunsandel farm, she had had to forsake a nursing job she had arranged at the Rakaia Hospital, she said.