Cyndicate Property Group Limited v Jun - [2011] NZCA 502

IN THE COURT OF APPEAL OF NEW ZEALAND

CA837/2010
[2011] NZCA 502

BETWEEN CYNDICATE PROPERTY GROUP LIMITED
Appellant

AND ZENG JUN
First Respondent

AND TIAN HONG WANG
Second Respondent

AND DAVID LEE ALSO KNOWN AS DAVID LI ALSO KNOWN AS JIN QING LI
Third Respondent

Hearing: 26 May 2011

Court: Arnold, Ellen France and Stevens JJ

Counsel: M J Fisher and K J Muston for Appellant
D W Grove for Respondents

Judgment: 30 September 2011 at 10 am

JUDGMENT OF THE COURT

A The appeal against the refusal to grant summary judgment is dismissed.

BThe appellant must pay the respondents costs for a standard appeal on a band A basis and usual disbursements.

REASONS OF THE COURT
(Given by Ellen France J)

Table of Contents

Para No.

Introduction  [1]
Background  [4]
The decision of the High Court  [11]
The submissions on appeal  [15]
Discussion  [18]
         Approach to s 225  [19]
         Application of s 225(2)(b) to this case  [38]
Disposition  [53]
Postscript  [54]

Introduction

Cyndicate Property Group undertook a residential subdivision on the northern outskirts of Hamilton. The respondents all bought sections in the subdivision in the early stages of its development, prior to the deposit of the survey plan with the Hamilton City Council. Over three years after Cyndicate had obtained subdivision consent, the survey plan had still not yet been deposited. At that point, the respondents purported to cancel the agreements.
The respondents cancelled the agreements on the basis that Cyndicate had not made reasonable progress towards lodging the survey plan. In so doing, they relied on s 225(2)(b) of the Resource Management Act 1991 (the RMA). Section 225(1) of the RMA allows for agreements to be made for the sale of land in a proposed subdivision prior to the deposit of a survey plan. Section 225(2)(b) states that such agreements are deemed to be made subject to the condition that the purchaser may, after the expiration of two years after the date of granting of the resource consent or one year after the date of the agreement (whichever is the later), rescind the contract if the vendor has not made “reasonable progress” towards submitting a survey plan to the territorial authority for its approval, or has not deposited the survey plan within a reasonable time after its approval.
Cyndicate did not accept that the agreements were properly cancelled. Accordingly, after the respondents refused to settle, Cyndicate sued for specific performance of the agreements and sought summary judgment.[1] Associate Judge Bell refused to grant summary judgment.[2] On appeal, the appellant challenges the Associate Judge’s conclusion that there were factual disputes about whether or not reasonable progress had been made towards the deposit of the survey plan which ought to go to trial.

Background

[1]Mr Fisher advised that specific performance was no longer sought in relation to Zeng Jun. That claim is now limited to judgment as to liability.

[2] Cyndicate Property Group v Jun HC Auckland CIV-2010-404-2397, 12 November 2010.

We largely adopt Associate Judge Bell’s description of the…

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 Cyndicate Property Group Limited v Jun

Details

AGLC: Cyndicate Property Group Limited v Jun [2011] NZCA 502
Case: [2011] NZCA 502
Decision Date: 30 September 2011

CaseChat Overview and Summary

Cyndicate Property Group Limited brought an appeal against the refusal of Associate Judge Bell to grant summary judgment in favour of Cyndicate in proceedings brought against Zeng Jun, Tian Hong Wang, and David Lee (also known as David Li and Jin Qing Li) who had purchased residential lots in a subdivision in Hamilton. The appeal was heard by Arnold, Ellen France, and Stevens JJ. The respondents sought to cancel the purchase agreements on the basis that Cyndicate had not made reasonable progress towards depositing a survey plan as required by s 225(2)(b) of the Resource Management Act 1991. Cyndicate argued that the Associate Judge had erred in his approach to the question of whether it had made reasonable progress towards depositing the survey plan, and that there was no evidential basis for opposing summary judgment. The Court of Appeal found that the Associate Judge had not erred in his approach to the question of whether Cyndicate had made reasonable progress towards depositing the survey plan. The appeal was dismissed and the respondents were awarded costs for a standard appeal on a band A basis.

Orders