Dobson v Xia - [2019] NZHC 692

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-002478

[2019] NZHC 692

UNDER Subpart 6 of the High Court Rules 2016

IN THE MATTER OF

An agreement for sale and purchase of real estate

BETWEEN

WENDY ELAINE DOBSON and SCO

TRUSTEES NO.4 LIMITED as trustees of the WE Dobson Family Trust

Plaintiffs

AND

JING XIA

Defendant

Hearing: 3 April 2019

Appearances:

A Fletcher for the Plaintiffs

No appearance for the Defendant

Judgment:

4 April 2019

JUDGMENT OF MOORE J

This judgment was delivered by me on 4 April 2019 at 10:00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

DOBSON & ANOR v XIA [2019] NZHC 692 [4 April 2019]

Introduction

[1] The plaintiffs are Wendy Dobson and SCO Trustees No. 4 Ltd as trustees of the WE Dobson Family Trust (“the Trust”). The plaintiffs apply for summary judgment against the defendant, Jing Xia, in respect of an alleged breach of contract. To date, Ms Xia has filed no opposition to the proceeding and has not appeared at any of the hearings. For that reason, the plaintiffs seek summary judgment be entered in their favour by way of formal proof.

Background

[2] The Trust owned property located at 17/386 Richmond Road, Grey Lynn, Auckland (the Property). On 1 April 2017 Ms Dobson and Ms Xia entered into a sale and purchase agreement whereby the Trust would sell the Property to Ms Xia (“the First Agreement”). The relevant terms of the First Agreement were:

(a)The purchase price was to be $1,200,000;

(b)The deposit payable was 10% of the purchase price, being $120,000; and

(c)The settlement date would be 30 June 2017 or, if the Certificate of Code Compliance (“the CCC”) had not been issued by this date, five days after the CCC was issued.

[3] Ms Xia paid the $120,000 deposit in two instalments on 11 and 12 April 2017. She also signed the Agreement.

[4] The CCC was not issued until 18 January 2018. Settlement was therefore due on 26 January 2018.

[5]Ms Xia failed to complete settlement on 18 January. In accordance with cl

11.1 of the First Agreement, the plaintiffs immediately issued a settlement notice requiring settlement within 12 days. This notice was calculated to expire on 15 February 2018.

[6] Ms Xia failed to comply with this extended settlement date. On 15 February 2018, Ms Dobson instructed her solicitor to cancel the First Agreement pursuant to cl 11.4. That was done by letter to Ms Xia’s solicitors on the same day. Ms Xia’s deposit was surrendered to the plaintiffs.

[7] Ms Xia then contacted Ms Dobson privately informing that that she was still interested in purchasing the property. On 16 February 2018 Ms Xia’s solicitors wrote to the plaintiffs’ solicitors offering to purchase the Property for $1,250,000. The deposit paid under the First Agreement would be used as part of settlement funds.

[8] On 21 February 2018, the plaintiffs’ solicitors replied.…

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 Dobson v Xia

Details

AGLC: Dobson v Xia [2019] NZHC 692
Case: [2019] NZHC 692
Decision Date: 4 April 2019

CaseChat Overview and Summary

The case of Dobson v Xia concerns a dispute between Wendy Elaine Dobson and SCO Trustees No. 4 Limited as trustees of the WE Dobson Family Trust (the plaintiffs) and Jing Xia (the defendant) over a breach of contract in the sale of real estate. The dispute was heard and determined by the High Court of New Zealand at Auckland Registry. The plaintiffs sought summary judgment against the defendant for breach of contract in respect of an alleged failure to settle on an agreed purchase price. The defendant did not appear at any hearings nor did she file any opposition to the proceeding.

The primary legal issue the court had to decide was whether the defendant breached the first agreement for the sale of the property. The plaintiffs argued that the defendant failed to settle the purchase within the specified time period under the first agreement. The defendant did not challenge this claim and did not appear at any hearings. The court had to determine whether the failure to settle constituted a breach of contract and if so, whether the plaintiffs were entitled to damages for that breach.

The court found that the defendant did breach the first agreement by failing to settle within the specified time period. The court was satisfied that the breach was sufficient to ground a claim for breach of contract. The court noted that unlike the second agreement, the defendant signed the first agreement and there was no suggestion that it was not a valid contract until it was cancelled. The court was also satisfied that the plaintiffs had made out their case and that judgment on liability should be entered in favour of the plaintiffs. However, the court noted that the quantum of damages sought by the plaintiffs was tailored to a breach of contract of the second agreement and that the discrepancy in the overall quantum of damages caused by that difference could be easily calculated. The court directed that further evidence or submissions on the losses arising from the breach of the first agreement be filed within 10 working days of the date of this judgment.

In conclusion, the court found in favour of the plaintiffs and ordered the defendant to pay damages for breach of contract. The court left the assessment of damages to be determined at a later date.

Orders