Armishaw v Huang - [2022] NZHC 2484

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2461

[2022] NZHC 2484

BETWEEN
GRANT PAUL HOWARD ARMISHAW

Plaintiff

AND

DE SHAN HUANG

and
XIU FENG HUANG

Defendants

Hearing: 26 July 2022

Appearances:

A J Woodhouse for the Plaintiff K Sun for the Defendant

Judgment:

29 September 2022

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 29 September 2022 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Woodhouse Law, Auckland, for the Plaintiff

ARMISHAW v HUANG [2022] NZHC 2484 [29 September 2022]

Introduction

[1] Grant Armishaw applies for summary judgment against De Shan Huang and Xiu Feng Huang for transfer of a property in central Auckland.1 Mr Armishaw entered into a binding agreement with Mr and Mrs Huang to purchase an apartment at Metropolis Apartments on Courthouse Lane, Auckland. He says that he was ready, willing and able to settle the transaction. However, Mr and Mrs Huang refused to do so, without valid excuse. Mr Armishaw says that they have no arguable defence to his claim and they should be compelled to complete the transfer of the property.

[2] Mr and Mrs Huang oppose the application. They say that they only understand Mandarin Chinese and cannot read or speak English. They assert that the real estate agent omitted to insert a condition into the agreement which they had specifically instructed her to insert. As a result, they claim that the agreement ran contrary to their express intentions. Mr and Mrs Huang claim that they have arguable defences, under which they are entitled to cancel the agreement or the agreement was void ab initio.

[3]The issues in relation to this application are:

(a)Has Mr Armishaw satisfied the Court that Mr and Mrs Huang have no arguable defence to his claim?

(b)If so, should the Court exercise its residual discretion not to order summary judgment?

Factual background

[4] Mr and Mrs Huang are a retired couple residing at Metropolis Apartments, 1 Courthouse Lane, Auckland Central. They are the registered owners of Apartment 1707. The property is described on the Record of Title as consisting of Principal Unit 17G (the apartment) and Accessory Units C41 and 4F (the carpark and storage area) (the Property).

1 High Court Rules 2016, r 12.2.

[5] Mr Armishaw is an international airline pilot currently living in Doha, Qatar. His mother, Heather Armishaw — who, along with her son, has sworn an affidavit in support of this application2 — and his father own three apartments at Metropolis Apartments. Mr Armishaw’s sister owns one apartment. All are leased to the hotel operating in the complex, Avani, which pays a fixed rate of return.

[6] Intending to invest in an apartment himself as a “hands-off” investment, Mr Armishaw was immediately interested in the Property when it was advertised for sale. He deposes that, from memory, the Property had been advertised without a carpark or storage unit.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Armishaw v Huang and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NZHC 2484
Decision Date: 29 September 2022

CaseChat Overview and Summary

The case of Armishaw v Huang was before the High Court of New Zealand Auckland Registry, which was tasked with determining whether the defendants, De Shan Huang and Xiu Feng Huang, had any arguable defences to the plaintiff, Grant Armishaw's, claim for the specific performance of a sale and purchase agreement for an apartment in Auckland. The defendants argued that they had several affirmative defences, including misrepresentation, mistake, and non est factum. The court found that none of these defences were arguable. The court also determined that specific performance should be ordered, with certain conditions attached to the transfer of accessory units that were part of the property. The court granted summary judgment in favour of the plaintiff, ordering specific performance of the agreement, compensation for the defendants' breach, and costs to the plaintiff.

Orders