Arranmore Developments Limited v Zhang - [2015] NZHC 2413

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-005446 [2015] NZHC 2413

BETWEEN
ARRANMORE DEVELOPMENTS

LIMITED Plaintiff/Respondent

AND

QIYUAN ZHANG Defendant/Applicant

Hearing: 2 October 2015

Appearances:

M J Fisher for Plaintiff/Respondent
H M Lim and M M Moon for Defendant/Applicant

Judgment:

2 October 2015

ORAL JUDGMENT OF VENNING J

Solicitors: Daniel Overton Goulding, Auckland
Forest Harrison, Auckland

Copy to: M J Fisher, Auckland

ARRANMORE DEVELOPMENTS LIMITED v ZHANG [2015] NZHC 2413 [2 October 2015]

[1] The defendant Qiyuan Zhang applies to set aside a judgment entered against her almost five years ago on 12 October 2010.

[2] In December 2007 Prema Developments Limited as vendor and the defendant as purchaser entered two agreements for sale and purchase in relation to two lots of land at Point View Park, Flat Bush. The agreements for sale and purchase recorded the defendant’s solicitors as Snedden and Associates. In January 2008 Snedden and Associates paid the deposits of $68,000 to the vendor’s solicitors’ trust account.

[3] On 3 June 2008 Prema assigned its interest as vendor to the plaintiff Arranmore Developments Limited and gave notice of assignment to Snedden and Associates.

[4] The lots were subject to subdivision. Settlement was due five working days after titles were available for searching. The titles duly issued and settlement was due on 22 May 2009. The defendant failed to settle. The plaintiff’s solicitors issued settlement notices on 4 June 2009. Snedden and Associates responded with a letter on 9 June 2009 in which they stated:

We refer to previous correspondence in this matter and to recent telephone discussions.

We advise that our client has been unable to obtain finance to complete this matter. Even if other terms were negotiated with the vendor we advise that due to our client’s current circumstances she will not be in a position to proceed with the purchase.

[5] On 25 August 2009 the plaintiff filed proceedings seeking specific performance of the agreement for sale and purchase by way of application for summary judgment. The application was called on 30 October 2009. There was no appearance by or on behalf of the defendant. Justice Hugh Williams entered summary judgment for the plaintiff and ordered the defendant to specifically perform the agreement for sale and purchase, after noting the defendant had been served but had not taken any steps to oppose. Leave was reserved to the plaintiff to apply to apply for further ancillary or other orders.

[6] The plaintiff subsequently exercised the leave and applied to the Court for an order setting aside the order for specific performance, cancelling the agreement for sale and purchase and judgment for liability for damages together with an inquiry into damages.

[7] As the plaintiff’s process server was unable to locate the defendant the plaintiff applied for an order for substituted service of that application. The plaintiff had previously published notice of the application in the New Zealand Herald.

[8] On 12 October 2010 when the matter came before Associate Judge Abbott he made orders…

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.

Continue reading Arranmore Developments Limited v Zhang

Details

AGLC: Arranmore Developments Limited v Zhang [2015] NZHC 2413
Case: [2015] NZHC 2413
Decision Date: 2 October 2015

CaseChat Overview and Summary

In the case of Arranmore Developments Limited v Zhang, the defendant, Qiyuan Zhang, sought to set aside a judgment entered against her in 2010. The dispute originated from two agreements for sale and purchase of two lots of land at Point View Park, Flat Bush, in December 2007. The vendor, Prema Developments Limited, assigned its interest to the plaintiff, Arranmore Developments Limited, in June 2008, and the defendant failed to settle the purchase by the due date of 22 May 2009. The plaintiff filed proceedings for specific performance of the agreement for sale and purchase by way of an application for summary judgment in August 2009, which was granted in default of the defendant's appearance. The summary judgment was later set aside in October 2010, and the plaintiff applied for an order setting aside the order for specific performance, cancelling the agreement for sale and purchase, and judgment for liability for damages. The defendant opposed the application for summary judgment and sought to set aside the 2009 judgment on several grounds, including lack of service, lack of authority of the solicitor to confirm the contract as unconditional, and misrepresentation by the real estate agent.

The court examined the defendant's claim that she was not served with the proceedings in 2009. The process server's affidavit confirmed service on the defendant at her registered address. The court found that the defendant's arguments were not supported by the evidence and that the defendant's financial situation at the time was consistent with her failure to take any steps in response to the application for summary judgment. The court also dismissed the proposed defences, stating that the contract was unconditional, and that the defendant's claim of misrepresentation by the real estate agent was not credible.

The court held that the defendant's application to set aside the judgment of October 2010 on liability was dismissed, and the plaintiff was to have costs on a 2B basis.

This case demonstrates the importance of proper service of court documents and the consequences that can arise from a failure to take timely steps in response to court proceedings. The court's decision to dismiss the defendant's application to set aside the judgment highlights the need for defendants to be diligent in responding to legal proceedings to avoid default judgments and potential liability for damages.

Orders