Bi v She

[2022] NZHC 1787

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000223

[2022] NZHC 1787

BETWEEN

RAN BI and LI LIU

Plaintiffs

AND

YURONG SHE

Defendant

Hearing:	21 July 2022 with further submissions received 22 July 2022
Counsel:	J J Taylor and A J Summerlee for Plaintiffs No appearance for Defendant
Judgment:	26 July 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 26 July 2022 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BI v SHE [2022] NZHC 1787 [26 July 2022]

[1]                  The plaintiffs seek specific performance of an agreement for sale and purchase of real estate by auction dated 25 August 2021, pursuant to which the defendant agreed to sell to the plaintiffs a property at 23 Westlake Drive, Halswell.

[2]                  The defendant  failed  to  settle the sale of the property  to  the plaintiffs  on   8 October 2021 as required by the agreement. The plaintiffs were ready, willing and able to settle at that time, and remain so.

[3]                  The plaintiffs served a settlement notice under the agreement on the defendant on 26 October 2021 requiring the defendant to settle within 12 working days, but the defendant did not comply with the settlement notice and continues to be in default of the agreement.

[4]                  The defendant may be in the People’s Republic of China. The property has suffered damage and from a lack of maintenance as it has been unoccupied for some time.

[5]                  The proceeding was filed on 31 May 2022. The plaintiffs were unable to serve the defendant and applied for substituted service. On 16 June 2022, I made orders dispensing with personal service upon the defendant and directing that substituted service be effected by way of email to the defendant and her solicitors.1 Service was effected upon the defendant in accordance with the order for substituted service on 27 June 2022.

[6]The defendant has not taken any steps in the proceeding.

[7]                  When the application for summary judgment was called before me on 21 July 2022, there was no appearance on behalf of the defendant.

[8]                  I had considered the plaintiffs’ application for summary judgment prior to the hearing and was satisfied that it was appropriate to order specific performance. I raised some queries with counsel concerning the form of the order and the damages claimed. As a result, the matter was adjourned so that the plaintiffs’ lawyer could provide

1      Bi v She [2022] NZHC 1421.

further submissions to justify the damages claimed. Those further submissions were received on 22 July 2022 and I have considered them.

[9]                  All of the sums claimed as damages were identified in the statement of claim and the evidence to support those claims is set out in the supporting affidavit of Ran Bi, except in respect to the plaintiffs’ legal costs since the commencement of the proceeding. Evidence concerning the claim for legal costs as damages is set out in an updating affidavit of Natasha Adams dated 21 July 2022. Counsel has provided a schedule of scale costs also.

[10]              I am satisfied, based on the evidence before me, that the defendant has no arguable defence to the plaintiffs’ claim and summary judgment shall be entered as set out below.

Result

[11]              There shall be an order for specific performance that within 10 working days of the date the plaintiffs serve the sealed judgment upon the defendant, the defendant shall transfer to the  plaintiffs  all  its  right,  title  and  interest  in  the  property  at  23 Westlake Drive, Halswell being Lot 86 on Deposited Plan 57020, Canterbury Land Registration District (Certificate of Title CB33F/1249) on the terms and conditions set out in the agreement for sale and purchase dated 25 August 2021.

[12]              In the event that the defendant fails to comply with the order in [11] above, I reserve leave to the plaintiffs to apply on an ex parte basis to the High Court for orders authorising the Registrar of the High Court at Christchurch to execute such documents and do such other acts as may be required to convey the property to the plaintiffs.

[13]              The defendant is to pay the plaintiffs damages consequent upon its breach of the agreement of 25 August 2021 in the following amounts:

(a)increased borrowing costs – $2,339;

(b)building inspection and report costs – $1,050;

(c)damage to the property – $10,036.05; and

(d)additional legal expenses – $11,415.27.

[14]              The plaintiffs are also entitled to 2B scale costs in the amount of $15,057 (as set out in schedule A to counsel’s memorandum) plus disbursements as fixed by the Registrar.

[15]              I direct that the plaintiffs may serve the sealed judgment upon the defendant in the same manner as set out in my judgment of 16 June 2022.

O G Paulsen Associate Judge

Solicitors:
Parry Field Lawyers, Christchurch