Browne v Tepaki 1 Holdings Ltd [2011] CKHC 52; Plaint26.2009 (19 July 2011)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)
Plaint No. 26/2009

BETWEEN

LOUISA MAIRE BROWNE
as the Executor of the Estate of Lionel Browne
Plaintiff

AND

TEPAKI 1 HOLDINGS LIMITED
(In Liquidation)
Defendant

Hearing: 19 July 2011

Counsel: Ms Rokoika for the Plaintiff
No Appearance for the Defendant

Judgment: 19 July 2011

JUDGMENT OF C NICHOLSON J

[1] Ms Broweks judgment arising frng from the purchase by the late Lionel Browne of Unit 8, Manea Beach Vilin June 2une 2006 for $630,000. That money was paid to the company, but the sale of Unit&#1to Mr Browne was not cnot carried out by the company.

[2] The history of the purchase and its background is stated in the affidavit by Louisa Maire Brown sworn on 18 July this year.

[4] This Court gave leave to the executor of Mr Browne's ne's estate to nuetinue this action against the company in liquidation.

[5] The estate pursues its claim against the company and seeks judgment for an order that eithit 8 be transferred by the company to the estate, or a or alternatively that the estate be ordered to repay the $630,000 plus interest.

[6] Ms Rokoika s that, of the two two items of relief, the estate prefers that there be an order for the transfer of Unit 8 to it. The companynot takt taken any steps in respect of the liquidation or the estate's claim since Mr C Comeskeyared for it seekiseeking to avoid liquidation and when subsequently the liquidation proceeded because of the apparent failure bycompany to perform an agreement negotiated for the company by Mr Comeskey.

[7r> [7] I am satisfied from the uncontested affidavit material provided that there was an unconditional and binding agreement by the company to transfer Unit 8 to the Mr&#rowne, and thad that he kept his side of the contract ract by paying the purchase price and that the failure to transfer the united solely with the company. Although there were attempts by Mr Browne to obtain satissatisfaction by cancelling the contract, I am of the view that the legal and factual merits in this action rest entirely with Mr Browne's e and the interesterests ofice require that the estate be given such redress as is apps appropriate. The estate opts for an order that the interests of the compn Unit 8 be transferred to the e.
[8] I 8] I hereby order accordingly that the interest of the company in Unit 8 bnsferred to the estate fate forthwith.

[9] Because of Mr Grey's understandable refusal to take any steps as liquid I grant the application made by the estate to discharge Mr Grey as tquidator of r of t of the company, and in his place I appoie Registrar of the High Court of the Cook Islands, namely Mely Ms Cla Henry-Anguna, as the prhe provisional liquidator of the co, and declare that she is e is entitled in that capacity to execute a Deed of Assignment from the company in liquidation to the Plainand take any further steps teps necessary to enable transfer of the company's interest in Unit 8he Plaintiff. The Registraistrar's costs in taking these steps are to be paid by the Plaintiff.

[10] Because the Plaintiff has been successful in this eding, I order that the company in liquidation pay to the Pthe Plaintiff costs of $10,000 plus $1,000 for disbursements. This order for payment of costs and disbursements can be lodged with the liquidator of the company but there is considerable doubt whether, as an unsecured creditor, payment of this amount or part thereof will be made.

C Nicholson J

Editorial Note: Derived from the Court’s electronic records and believed to be correct and final.