Chandler Properties Limited v Yu - [2020] NZHC 753

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-571

[2020] NZHC 753

UNDER the Contract and Commercial Law Act 2017

IN THE MATTER

of an application for specific performance

BETWEEN

CHANDLER PROPERTIES LIMITED

Plaintiff

AND

HONGYING YU

Defendant

Hearing: On the papers

Appearances:

DJG Cox for the Plaintiff

Judgment:

16 April 2020

JUDGMENT OF GAULT J

This judgment was delivered by me on 16 April 2020 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors:
Mr DJG Cox, Rennie Cox, Auckland

CHANDLER PROPERTIES LTD v YU [2020] NZHC 753 [16 April 2020]

[1] The plaintiff, Chandler Properties Ltd (CPL), is the registered proprietor of a section of bare land on Potters Hill Drive in Queenstown.1 CPL has obtained an order against the defendant, by way of summary judgment, for specific performance of the defendant’s obligation to purchase the section under an agreement for sale and purchase (the Agreement). The defendant has failed to comply.

[2] CPL now seeks further orders of the Court declaring that the Agreement remains on foot and that the summary judgment may be enforced by way of a sale order in respect of a separate unencumbered property owned by the defendant at 9 Sunset Lane in Queenstown (the Property).2

[3]The defendant has taken no steps in relation to the further orders sought.

Factual background

[4] On 24 September 2018, the parties entered into the Agreement whereby the defendant agreed to purchase the section on Potters Hill Drive. On 15 October 2018, the Agreement became unconditional and on 17 October 2018 the defendant paid the deposit (being 10 per cent of the purchase price). Settlement was to occur on 17 December 2018 but was deferred to 1 February 2019, on the condition that the defendant pay $200,000 (as part of the settlement balance) on or before 17 December 2018. The defendant failed to pay the $200,000 and made no other payments. The defendant refused to settle, despite CPL issuing a settlement notice. The balance of the purchase price outstanding was $616,515.

[5] CPL brought proceedings seeking specific performance of the Agreement by way of summary judgment. On 30 July 2019, I entered summary judgment against the defendant, ordering specific performance of the defendant’s obligations under the Agreement by no later than five working days of the making of the order, by paying to CPL:

1 Lot 17 DP490069, Certificate of Title 706720.
2 Lot 16 DP20478 and Lot 33 DP 23371, and 1/8 share of Lot 22 DP20478, Certificate of Title OT15B/937.

(a) $616,515; and

(b)interest at the contractual rate of 12 per cent per annum, being
$202.69 per day on $616,515 from 18 December 2018 to the date settlement is completed; and

(c)costs on a schedule 2B basis of $10,927 and disbursements of $1,650.

[6] Upon receipt of the above payments, CPL was to do all things necessary to perform its obligations pursuant to the Agreement (in particular,…

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 Chandler Properties Limited v Yu

Details

AGLC: Chandler Properties Limited v Yu [2020] NZHC 753
Case: [2020] NZHC 753
Decision Date: 16 April 2020

CaseChat Overview and Summary

The High Court of New Zealand heard a case between Chandler Properties Limited (CPL), a property developer, and Hongying Yu, a purchaser, regarding an agreement for the sale and purchase of a piece of land in Queenstown. CPL sought specific performance of the agreement after Yu failed to comply with the terms, leading to a summary judgment in CPL's favor. Following this, CPL sought further orders to declare that the agreement remained valid and to enforce the judgment by way of a sale order over a different property owned by Yu. The court had to determine if the agreement was still in effect and if CPL could enforce the summary judgment through a sale order.

The court examined whether the agreement was validly cancelled by CPL. It found that CPL's notice of intention to cancel was ineffective because it was not served in accordance with the terms of the agreement. As a result, the agreement remained in force. Additionally, the court considered whether CPL could enforce the summary judgment by a sale order. It noted that while the use of a sale order process was not directly in issue in previous cases, it could be utilized under similar circumstances. The court concluded that since the agreement was still valid, CPL could enforce the summary judgment through a sale order.

The court granted CPL's application, declaring that the agreement remained in effect and that the summary judgment could be enforced by a sale order over Yu's property at 9 Sunset Lane in Queenstown. This decision allowed CPL to proceed with enforcing the judgment and recover the outstanding purchase price from Yu.

Orders