Du v Youn - [2025] NZHC 1540

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-001801 [2025] NZHC 1540

IN THE MATTER of a claim for specific performance for breach of contract

BETWEEN

NINGFEI DU

Plaintiff

AND

DAVID YOUN and MIJI SUNWOO

defendants

On the papers

Counsel:

D J Chisholm KC, M Singh and P S Kim for the Plaintiff P J Napier and J Y Leenoh for the Defendants

Judgment:

12 June 2025

JUDGMENT OF VAN BOHEMEN J

[on costs]

This judgment was delivered by me on 12 June 2025 at 12 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………..

Counsel/Solicitors:
D J Chisholm KC, Auckland Glaister Keegan, Auckland K3 Legal Ltd, Auckland

DU v YOUN [2025] NZHC 1540 [12 June 2025]

[1] Following a hearing in February 2025, in a judgment issued on 24 March 2025, I upheld the claim of the plaintiff, Ningfei Du, seeking the return of the deposit of
$1,063,000.00, which he paid following his successful tender to purchase the property at 149A Arney Road, Remuera, Auckland (the Arney Road Property) from the defendants, David Youn and his wife, Miji Sunwoo, in accordance with an agreement for the sale and purchase of the Arney Road Property (the ASP).1

[2] I also dismissed the defendants’ counterclaim for damages of $391,764.19, which had been reduced from $1,646,042.87, for losses they say they suffered as a result of Mr Du’s repudiation of the ASP and for interest on those losses.2

[3] My decision was based on my finding the Arney Road Property to be untenantable on the settlement date of 31 January 2023, as well as in March 2023, and that Mr Du was entitled to cancel the ASP and to the return of his deposit plus interest.3 In reaching that finding, I rejected the defendants’ argument that the defendants had varied the settlement date by giving notice under cl 5.15 of the ASP.4 I also held that the defendants had not issued a late settlement notice under cl 13 of the ASP.5 For these reasons, the settlement date remained 31 January 2023.6

[4] I held that, as the successful party, Mr Du was entitled to costs and made timetable directions for counsel to file memoranda on costs if they could not agree.7

Memoranda of counsel for the parties

[5]Counsel for Mr Du have filed a memorandum in which they seek costs of

$78,511.50, comprising 2B costs with an uplift of 50 per cent on costs incurred after May 2024, and disbursements of $96,850.87. Mr Du seeks the uplift because, on 28 May 2024, the defendants rejected a Calderbank offer to settle the proceeding on terms that were more beneficial to the defendants than they obtained under the

1      Du v Youn [2025] NZHC 621 [Substantive Judgment].
2 At [162].
3      At [159]–[161].
4 At [141].
5 At [146].
6 At [146].
7      At [165]–[166].

Substantive Judgment.8 The memorandum states that Mr Du’s actual costs from the commencement of…

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 Du v Youn

Details

AGLC: Du v Youn [2025] NZHC 1540
Case: [2025] NZHC 1540
Decision Date: 12 June 2025

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Du v Youn involved Ningfei Du, the plaintiff, seeking specific performance for breach of contract against David Youn and Miji Sunwoo, the defendants. Ningfei Du sought the return of his deposit of $1,063,000.00, which he paid for the purchase of the Arney Road Property in Auckland, as well as costs and disbursements. The defendants counterclaimed for damages and interest, which were dismissed by the court. The primary issue before the court was whether Ningfei Du was entitled to the return of his deposit, which he claimed due to the untenantable state of the property on the settlement date, and whether the defendants' rejection of a Calderbank offer was reasonable, impacting the costs awarded.

The court found that the Arney Road Property was indeed untenantable on the settlement date of 31 January 2023, and thus, Ningfei Du was entitled to cancel the agreement for sale and purchase and reclaim his deposit. The court also held that the defendants' rejection of a Calderbank offer made on 22 March 2024 was unreasonable, as it was more beneficial to the defendants than the outcome they received in the substantive judgment. The offer would have resulted in the defendants retaining $150,000 of the deposit and returning the rest to Ningfei Du, whereas in the substantive judgment, they were ordered to pay $1,171,957.50, including interest.

The court awarded Ningfei Du costs of $78,511.50, including an uplift of 50 per cent on costs incurred after May 2024, and disbursements of $96,850.87, finding the defendants' arguments against the reasonableness of the Calderbank offer and the disbursements to be without merit. The court concluded that the defendants' conduct in rejecting the Calderbank offer was unreasonable and that an uplift in costs was justified.

Orders