凯文和爱丽丝的故事（五）Trespass Notice 禁止非法入侵警告
Background
背景
The Vendor's solicitor served a settlement notice on Alice's parents ("the parents") requesting them to settle within 12 working days or otherwise the vendor would cancel the agreement. The parents could not settle because Joe, the husband of the real estate agent, had lodged a caveat on the title and refused to withdraw it. The parents have been left with no other option but to issue proceedings in the High Court, which they did.
Surprisingly, shortly after the parents' lawyer served Joe with a writ, Joe caved in and forwarded his withdrawal of the caveat to the parents to enable them to settle.
Because New Zealand has introduced a new on-line electronic system for registering land title documents, shortly after settlement, the parents obtained a search copy of the certificate of title showing they are the registered proprietors.
In the meantime, it has emerged that Joe's wife was sacked by the real estate agency because she was sued by another vendor "for breach of the fiduciary duty owed by an agent to a principal".
Overwhelmed by the saga surrounding the purchase of the farmland property, the parents decided that they should give the property to Alice and help her settle in New Zealand. Excited by the news, Alice told Kevin that she was soon to become a multi-millionaire. However, Kevin told her that he had already become a multi-millionaire as his parents had transferred US$2,000,000 to him to establish a company providing financial services. Before long, Kevin realized that the financial service business is even more difficult to handle than the one he and Alice had just experienced through the acquisition of the real estate in New Zealand.
愛麗絲的父母接到賣方律師的“最後通牒”，必須在12個工作日內交割，否則賣方就要撤銷合同。愛麗絲的父母不能交割，因為地產經紀的先生“粥”在房契上放了一個類似凍結條款式的“警示通告”。無論好說歹說，“粥”就是不撤。出於無奈，愛麗絲父母只好下最後一步棋，將此案遞交到高等法院。
令人吃驚的是，“粥”根本不經打，一收到法庭傳票就蔫了，立刻準備好撤銷“通告”書，讓愛麗絲父母順利過戶。
紐西蘭剛剛實行土地讓渡電子註冊制，因此剛一交割完畢，立刻登記過戶。愛麗絲父母拿到了房契，在“地主”那一欄赫然標著他們的大名。
與此同時，“粥”太太被地產公司開除及其它一些隱情也露出端倪。原來她早就被人告了，而且法庭判定她“違背經紀和委託人之間的衡平法原則”。
為此次交割，愛麗絲的父母算是被折騰了個夠，因此他們決定將農場物業交給愛麗絲，這樣還可以幫助她在紐西蘭立足。
聽到這個消息，愛麗絲自然很興奮，忙不迭告訴凱文她不久就要變成百萬小富婆了。可是凱文卻告訴她，他早就是百萬小富翁了。在她父母為過戶打得不可開交時，凱文的父母給他轉過來200萬美金讓他在紐西蘭開金融公司，沒過多久，凱文就發現，在紐西蘭開金融公司比購置房地產還要受罪。
Settlement Notice
“交割通知”（最後通牒）
1. The vendor served on the parents a settlement notice under clause 9.1 of the agreement making time of the essence for the parents to settle within 12 working days. The standard ADLS/REINZ form of contract allows a party to cancel the agreement and/or pursue other remedies if the other party fails to settle in accordance with the settlement notice. The vendor's remedies include suing the purchaser for specific performance, suing for damages and/or canceling the agreement. Specific performance is a remedy by which a court orders the purchaser to perform the contract. Canceling the agreement, on the other hand, is another remedy by which the vendor may retain the deposit paid by the purchaser (but not more than 10% of the purchase price), and to sue the purchaser for damages. In this case, as explained in the previous articles, the vendor's intention was to cancel the agreement because the value of the farmland property had increased significantly since the end of last year when the parties negotiated the agreement.
賣方根據合同第9.1條款給愛麗絲父母下達了一個最後通牒，要求他們12個工作日內交割，刻不容緩。根據律師協會和地產協會聯合制訂的這份標準合約，如果一方不能夠根據這樣的最後通牒完成買賣手續，另一方則有權取消合約和/或索求賠償。就賣方而言，可以循司法途徑，要求強制執行和/或撤銷合同。“強制執行”指的是法庭強制你非買不可。“撤銷合同”，顧名思義；並且賣方可以扣罰訂金（但不可以超過售價的10%），同時索賠。就本案來說，時下房地產價值每日攀升，賣方眼紅了、嘴饞了，因此只想以最後通牒的方式撤銷合同。（那樣不僅可以待價而沽，而且還白撈10%的訂金）
2. Joe, the husband of the real estate agent, had lodged a caveat on the title and refused to withdraw it. The lawyer acting for the parents warned Joe and his lawyer and put them on notice that Joe had no caveatable interest and under section 146 of the Land Transfer Act 1952 "any person" lodging a caveat without reasonable cause is liable for damages.
地產經紀的先生“粥”在房契上放上那個“警示通告”，而且死活不肯撤。愛麗絲父母的律師早就警告過“粥”和他的律師，“粥”根本沒有“警示通告”權，依《土地讓渡法1952》第146條，“任何人”沒有合理依據而亂放警告，是要負法律責任、賠償損失的。
High Court Proceedings
高等法院立案
3. The parents had no other option but to resort to the assistance of the High Court. They issued proceedings including an interim injunction to prevent cancellation by the vendor and claims for damages against Joe and his lawyer under section 146 of the Land Transfer Act 1952. This section states that a person who lodges a caveat without reasonable course is liable to compensate anyone who sustains damages as a result.
愛麗絲的父母被逼無奈只好尋高等法院討個公道。他們提請訴訟，包括申請臨時禁止令，禁止賣方撤銷合同以及向“粥”和他的律師索賠。如上面所敘，依《讓渡法》第146條，任何人因某些人濫用法律而蒙受損失，都可以依法索求賠償。
4. The lawyer acting for the parents cited a Court of Appeal case to support the claim that both the client and the solicitor may be liable to pay compensation under section 146: Gordon v Treadwell Stacey Smith [1996] 3 NZLR 281.
愛麗絲父母的律師援引上訴法庭的一個判例，證明依第146條，當事人和律師是有可能連帶受罰的。（該案例在紐西蘭案例大全1996年編第3部有詳細記載）。
5. In order to obtain an interim injunction, the lawyer acting for the parents explained to them, they would need to establish to the satisfaction of the Court that:
要申請臨時禁止令，律師向愛麗絲的父母解釋說，他們必須說服法庭以下幾個要點：
(1) they had an arguable case that the vendor had not validly issued the settlement notice.
賣方並未有效出示交割通牒〔注：有效無效是有一定前提的。例如：如果賣方不能證明是緣於買方過失而致交割不能，則交割通牒無效。〕
(2) the balance of convenience favoured granting of the interim injunction;
揣度之平衡點傾向准予臨時禁止令。
(3) damages would not be an adequate remedy; and
賠償損失不是恰當之法律補救。
(4) the overall interests of justice favoured the grant of the interim injunction.
公義原則傾向准予臨時禁止令。
6. Surprisingly, shortly after Joe was served with the Court documents, he caved in. Settlement therefore took place in accordance with the agreement and the parents have now become the happy owners of the farmland property.
始料未及的是，傳票一送達，“粥”立刻兵敗如山倒。過戶順利進行，愛麗絲的父母成了驕傲的農場地主。
The Real Estate Agent
那個地產經紀
7. As more surprises unfolded, we learned more about Joe's wife, the real estate agent. She was sacked by her agency company and was sued by another vendor for the sale of a commercial property and the High Court just delivered a judgment against her.
慢慢地，那位地產經紀的真面目也顯現出來。她被地產公司開除，並且早就被人告到高等法庭，她的案子剛剛判下來。
8. In that case, the vendor ("the plaintiff") had owned a commercial property, which he had asked the defendant ("the agent") to sell. She became interested in purchasing the property herself and had made an offer to the plaintiff. At that time, as she told the plaintiff, she intended to retain the property for investment on a long-term basis. The plaintiff accepted her offer to purchase. Before the transfer was effected, the agent received from a third party an unexpected offer for the property at almost double the price she had paid. She rushed to accept this offer but did not inform the plaintiff, who thereafter issued the proceeding for the profit which the agent had made from the on-sale.
那樁案子涉及一幢商業房產。賣方（下稱“原告”）委託她出售。她自己想買，便出了個價。那個時候她告訴原告她自己想購置這個屋業做長期投資，原告接受了她的出價。過戶前，她卻意外地拿到一個第三方出價，比她的出價高出一倍。貪字面前，她早忘了對原告的承諾（即自購投資），轉手賣了個高價卻不讓原告知道。因此原告提出訴訟，索要她倒賣所獲利潤。
9. The High Court found that the defendant's duty as an agent to disclose the purchase, i.e. the on-sale to the third party, might have continued beyond the point where assurances were given that she intended to keep the property in the long term. The agent was found in breach of the fiduciary duty she owed as an agent to the plaintiff as a principal. Consequently, the agent was not entitled to make a profit out of the relationship without disclosure and consent of the plaintiff. The High Court granted judgment for the plaintiff, and ordered the agent to account to the plaintiff for the profit made (through her family trust) on the on-sale of the plaintiff's property.
高等法院裁定，被告做為一名經紀，她必須向原告披露轉手倒賣之職責，在逾越最初自購投資那個行為以後，仍繼續維持。換句話說，作為一個經紀人，必須依法向自己的委託人披露這一事實而未披露，在經紀人──委託人這層法律關係中，她違反了衡平法原則中經紀人受託職責。因此，在未向原告披露並征得原告同意之前，轉手倒賣所獲利潤，被告不得享有。法庭判定，被告地產經紀在轉手買賣中所獲利潤全數給付原告。
10. In a sequel to that case, the agent's solicitor who was one of the trustees of that trust, was also found in breach of fiduciary duty and also liable to account to the plaintiff because that solicitor had knowingly assisted, and on settlement knowingly received, the windfall profit on behalf of the trustees (I will explain the case in a separate article later). It was reported that the solicitor was very upset and swore that he would be "extremely careful" in acting for such an agent.
補充介紹一點，被告地產經紀是以其家庭信託成交第二樁買賣的（即轉手倒賣）。在隨後的一個相關案件中，她的律師即其家庭信託的託管人之一，也被裁定違背衡平法原則，被判賠償原告損失。因為這名律師以其託管人身份，明知故助；並在過戶以後，明知故取地以託管人名義，讓被告人家庭信託獲取這一橫財。（我會在適當時候專門介紹這個案例）。據說那位律師氣急敗壞，發誓再不跟這種地產經紀為伍。
Starting from the next issue (stories of Kevin and Alice number 5) we are going to focus on the multi-millionaire, Kevin, to see how he copes with the enquiries made by the Securities Commission in respect of his financial services business.
從下期開始，即“凱文和愛麗絲故事之五”，我會推出新的系列：“在紐西蘭開金融公司。”
