Cartref Remuera Trustee Limited v Le - [2023] NZHC 256

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1341

[2023] NZHC 256

BETWEEN
CARTREF REMUERA

TRUSTEE LIMITED, as trustee of the CARTREF REMUERA TRUST

Plaintiff

AND

AND

THATCH SON LE

First Defendant

HERMAN YU

Second Defendant

Hearing: 8 February 2023

Appearances:

P J Wright and J A R Barrow for Plaintiff S R G Judd for Second Defendant

No appearance for First Defendant (appearance not required)

Judgment:

21 February 2023

Reissued:

5 April 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

This Judgment has been amended under the Slip Rule By adding the name “Frances” Li to paras [7], [19] and [24].

CARTREF REMUERA TRUSTEE LIMITED v LE AND YU [2023] NZHC 256

[1] The plaintiff, Cartref Remuera Trust (the Trust), signed two contracts to sell to the second defendant, Mr Yu, a substantial property in Upland Road, Remuera, Auckland (the property).

[2] It is common ground that the first contract dated 20 September 2020 (the first contract), albeit conditional, was a valid contract, although it was not confirmed by Mr Yu under a due diligence clause. Mr Yu, having not confirmed the contract, subsequently sought to enter a second contract to buy the property.

[3] The issue in this proceeding is whether a second contract came into force between the Trust and Mr Yu.

[4] A complicating factor is that shortly after Mr Yu’s first contract was entered, the Trust on 24 September 2020 entered a back-up contract to sell the property to Mr Le, the first defendant. Mr Le’s contract was subject to Mr Yu’s first contract not proceeding. With Mr Yu not confirming his first contract, Mr Le’s contract became unconditional on 25 September 2020. However, Mr Le did not pay the deposit under his contract, leading to it being cancelled on 2 October 2020. Mr Le took no steps in respect of this proceeding for his unpaid deposit and judgment was entered against him by Gault J in a Minute dated 11 October 2023.

[5] In the meantime, having had second thoughts about the property, on 26 September 2020 (a Saturday), Mr Yu made a second offer to buy the property through a real estate agent, who I will refer to below (the second offer). The trustee says it accepted the second offer. Whether the trustee’s acceptance resulted in a binding contract is the key issue. As set out below, Mr Yu says his second offer did not result in a contract. As the trustee submits it is a binding agreement, it seeks summary judgment against Mr Yu for his unpaid deposit and other issues.

[6] Mr Yu submits that when he tabled the second offer with the real estate agent he orally advised the real estate agent that the offer was open for three working days. Therefore, Mr Yu says the trustee’s purported acceptance on 1 October 2020 (the date

on the agreement) was a day late. Mr Yu…

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 Cartref Remuera Trustee Limited v Le 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: [2023] NZHC 256
Decision Date: 21 February 2023

CaseChat Overview and Summary

The case of Cartref Remuera Trustee Limited v Le [2023] NZHC 256 involved the plaintiff, Cartref Remuera Trust, which had entered into two contracts to sell a property to the second defendant, Mr Yu. The first contract was conditional and not confirmed by Mr Yu, leading him to seek a second contract. The central issue was whether a second contract came into force between the Trust and Mr Yu. The Trust entered into a backup contract with Mr Le, the first defendant, which became unconditional when Mr Yu did not confirm his first contract. However, Mr Le did not pay his deposit, resulting in the cancellation of his contract.

The Trust claimed that it accepted Mr Yu's second offer to purchase the property on 1 October 2020, while Mr Yu argued that his offer was open for only three working days and thus lapsed on 30 September 2020. The Trust argued it was not aware of any such time limit and that the real estate agents involved were not properly authorised to communicate such a condition. The court held that Mr Yu's evidence was not to be rejected based on the material before the court, and that the case was unsuitable for summary judgment.

The court also noted that the absence of a 'letter before action' led to the decision to depart from the normal rule of reserving costs where an application for summary judgment was dismissed. The court ordered that the plaintiff would pay the second defendant's costs in respect of the application on a 2B basis plus disbursements as fixed by the Registrar.

Orders