Ninety Nine Investment, Ltd. v. Overseas Courier Service

Appellant Ninety Nine Investments, Ltd., as the buyer, sought specific performance of a real estate purchase and sale agreement from respondent Overseas Courier Service (Singapore) Private, Ltd. (Overseas), the seller. Following a bench trial, the court denied specific performance and awarded judgment in favor of Overseas. Appellant contends that it was ready, willing and able to perform, but that it was prevented from performing by Overseas. We agree and reverse the judgment.

*1121 FACTUAL AND PROCEDURAL BACKGROUND

The Agreement

Appellant and Overseas each have a one-half interest in Brighton Villas, LLC, which owns a 62-unit apartment building and a 39-unit apartment building in Los Angeles. On October 5, 1999, the parties entered into a written agreement for appellant to purchase Overseas’ undivided one-half interest in each of the properties (the agreement), in order to dissolve the parties’ partnership. Overseas wanted to structure the transaction as a tax deferred exchange under Internal Revenue Code section 1031 and the parties agreed that appellant would receive a credit of $235,000 in consideration for its cooperation with the exchange. Appellant was also…