Effect of “and/or nominee”By entering into an agreement with a buyer and/or nominee, the seller appears to have entered into a contract with the buyer based on one of the following: In Laidlaw/Parsonage, assignment tended to be the touchstone in deciding whether the nominee`s rights had been established. In Lambly, the court searched in vain for evidence of an assignment; As none were found, she concluded that the candidate had no enforceable rights. However, the court asked why the buyer had not intervened as a party and indicated that it was willing to consider the argument that an equitable assignment had taken place. In Coldicutt v. Keeys notes in the report that an official document has been prepared naming Coldicutt as the buyer: the court`s reasoning for this conclusion is difficult to support. Essentially, the Court found that section 4 was applicable on the basis that the definition of “landlord” in the lease included “where applicable the executors, administrators, successors and permitted assigns of the landlord.” Based on the principle that the foundation was a qualified assignment of the landlord, the court found that it belonged to a group of people to whom the lease conferred benefits. It therefore fell within the scope of Section 4. The definition of landlord in the lease does not create any rights; Rather, it simply means that the term “landlord” is not limited to the person named in the lease. Thus, if an executor, administrator, successor or authorized assignee has otherwise followed in the landlord`s footsteps, the term “landlord” also applies to that part.
It goes without saying that a landlord has both obligations and rights under a lease, and it is clearly impossible to impose these obligations on others solely by a definition of the lease. Therefore, the source of rights vested in an authorized executor, administrator, successor or assignee, or imposed on an executor, administrator, successor or authorized assignment must be sought elsewhere than in the definition of “landlord” in the lease. The Court`s conclusion in this case concerning the application of the Privity Act 1982 must be regarded as a bad precedent for the Court`s decision in Laidlaw v. Parsonage. Neither Rattrays nor Ballance included the designation of a Contracting Party as “X and/or nominated”. Implications for Laidlaw v ParsonageSo where is Laidlaw v Parsonage? The court essentially adopted Tipping`s reasoning in the Rattrays case. In addition, the Supreme Court dismissed the Laidlaws` application for leave to appeal on the grounds that “the relevant law in New Zealand has been satisfactorily regulated by [the Court of Appeal`s] decision”. What is surprising in Laidlaw v. Parsonage is that, unlike all previous appellate cases (i.e., Lambly, Field v. Fitton and Ballance), the court did not consider whether an assignment of the buyer`s rights had taken place. There was clearly some sort of assignment, as the report confirms that the trustees of the trust were treated by both parties as if they had followed in the footsteps of the buyers. As noted at the beginning of this Update, the parties` conclusion of a “deed of appointment” almost always results in an assignment of the buyer`s rights, which is generally regarded as a statutory assignment (formerly under section 130 of the Property Law Act 1952, now under sections 48 to 53 of the Property Law Act 2007).
A statutory assignment under article 130 had to be an absolute written assignment by the assignor, with explicit notice to the debtor (i.e. the promisor). The report on the case shows that these criteria were not met. However, it was clearly possible to argue in favour of a fair assignment of the arrangement to the trustees. Geoffrey Parsonage was the original contractor and there was documentary evidence (as well as Parsonage`s affidavit) that he had paid for the repairs. (The proceedings had been initiated on behalf of the trustees, and the High Court duly ruled that the Trust had paid the reparations on the basis of all the evidence.) The question arises as to why the proceedings were initiated on behalf of the liquidators. Since a trust is not a corporation, legally speaking, all that happened in the by-law was that the rectory co-owned the property with another person. However, this certainly did not lose Parsonage`s rights as a buyer – it could have successfully sued in its own name, as the original buyer, co-owner of the property and the one who had paid for the repairs. Given that the standard form of the contract of sale contains a “non-merger clause”, there does not appear to be any reason why Parsonage cannot legally transfer its rights to the trustees after the settlement of the warranties. It appears that neither the rectory nor the trustees exercised the remedies of an initial purchaser or assignee; the word “assignment” does not appear in any of the judgments of the High Court to the Supreme Court. This allowed the court to protect the accused from the consequences of an ill-prepared case.
However, it can be argued that concluding that a mere nominee has rights under section 4 of the Contracts (Deprivation) Act was not the correct way to do so. The assignor Bisson J. also noted that because of the nature of an assignment, it is unlikely that an assignee would be a person designated by name, description or reference to a class to which an advantage is granted in the contract.