Cartref Remuera Trustee Limited v Le - [2024] NZHC 668

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1341

[2024] NZHC 668

BETWEEN
CARTREF REMUERA TRUSTEE

LIMITED as trustee of the CARTREF REMUERA TRUST
Plaintiff

AND

THACH SON LE

First Defendant

HERMAN YU

Second Defendant

Hearing:
27 November 2023

(further submissions 29 November and 6 December 2023)

Appearances:

PJ Wright and JAR Barrow for the Plaintiff

P Shackleton and N Kang for the First Defendant

Judgment:

22 March 2024

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 22 March 2024 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Snedden Law, Auckland Meredith Connell, Auckland
Forest Harrison Lawyers, Auckland Shortland Chambers, Auckland
Britomart Chambers, Auckland Kitchener Chambers, Auckland

CARTREF REMUERA TRUSTEE LTD v LE [2024] NZHC 668 [22 March 2024]

Introduction

[1] On 11 October 2022 the plaintiff, Cartref Remuera Trustee Limited (Cartref), was granted summary judgment by default against the first defendant, Thach Son Le for $1,576,728.98.

[2] Mr Le’s liability to Cartref is for an unpaid deposit under a sale and purchase agreement for a property in Remuera, plus interest and costs. The sale and purchase agreement was executed between the plaintiff and the first defendant on 24 September 2020 as a backup agreement to a contract subject to a due diligence condition. When that contract did not proceed, the sale and purchase agreement was declared unconditional. Mr Le failed to pay the deposit and so the vendor cancelled.

[3] Cartref initiated summary judgment proceedings against Mr Le on 5 August 2022 regarding the unpaid deposit, almost two years later. Mr Le failed to respond and summary judgment was granted by default. As no address for service was filed by Mr Le, no documents were served on him following service of the initiating documents until a sale order was obtained from the Court on 28 June 2023. This order directed the sale of all of Mr Le’s land and chattels to meet the liability that by that date was $1,710,566.30.

[4] Mr Le applied on 13 July 2023 to set aside the default judgment and stay the execution of the sale order.

[5] No evidence has been filed by Mr Le’s wife, Mrs Beinui Yatfong Flora Le, despite her involvement as set out in the factual background below. Cartref relied on this failure in its written submissions.

[6] At the hearing, Mr Shackleton appeared as counsel for Mr Le, having recently stepped in because of the unavailability of original counsel. Mr Shackleton explained that after realising Cartref was relying on the failure of Mrs Le to give evidence, he had made enquiries. From these it became clear there were difficulties in obtaining evidence from Mrs Le as there had been a recent medical diagnosis complicating matters. A discharge summary from Auckland Hospital dated 24 October 2023 was provided by counsel as evidence of this.

[7] After discussion with counsel for both Mr Le and the plaintiff, I directed…

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.

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Details

Case: [2024] NZHC 668
Decision Date: 22 March 2024

CaseChat Overview and Summary

Cartref Remuera Trustee Limited, as trustee of the Cartref Remuera Trust, obtained a default summary judgment against Thach Son Le for an unpaid deposit under a sale and purchase agreement for a property in Remuera, along with interest and costs. The judgment was sought due to Mr Le's failure to pay the deposit after the agreement became unconditional following the cancellation of a prior contract. Mr Le applied to set aside the default judgment and to stay the execution of a sale order obtained to meet the judgment debt. The court considered whether Mr Le had a substantial ground of defence, if his delay in responding was reasonably explained, and if Cartref would suffer irreparable injury if the judgment were set aside. The court found that Mr Le had a substantial ground of defence based on a potential plea of non est factum, given his limited English proficiency and conflicting accounts of the agreement's terms. The delay in Mr Le's response was deemed reasonably explained by the COVID-19 pandemic and his limited English. The court also concluded that Cartref would not suffer irreparable injury if the judgment were set aside, especially given the delay in bringing the proceedings and the lack of clarity in the agreement regarding the deposit payment timing. Consequently, the summary judgment orders were set aside, and the execution of the sale order was stayed. Costs were reserved pending further proceedings.

Orders