Du v Youn - [2025] NZHC 621

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-001801

[2025] NZHC 621

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

BETWEEN

NINGFEI DU

Plaintiff

AND

DAVID YOUN and MIJI SUNWOO

defendants

Hearing: 24 – 27 February 2025

Appearances:

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

Judgment:

24 March 2025

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 24 March 2025 at 10:30 am 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 and MIJI SUNWOO [2025] NZHC 621 [24 March 2025]

Table of Contents

What happened? [6]

The essentials of the purchase [7]

Agreement for sale and purchase of replacement property [11]

Parties prepare for settlement [12]
The Anniversary Day weekend storm [15]

Red Placard issued  [19]
Correspondence between solicitors on settlement day  [23]
Correspondence after 31 January 2023  [31]
Assessments by geotechnical and structural engineers  [32]

Defendants seek to reassure Mr Du and obtain his assistance  [35] Defendants conclude licence agreement to occupy Mellons Bay Property [38] Defendants’ geotechnical report  [39]
Babbage report recommends placard be changed from red to yellow                [44]
Mr Du enters into agreement to purchase 76F Lucerne Road  [49]
Yellow Placard issued for Arney Road Property  [50]
Defendants vacate Arney Road Property  [51] Defendants propose settlement of sale and purchase of Arney Road  [52] Defendants send notice requiring settlement and settlement statement  [57] Defendants serve notice of breach  [61]
Mr Du cancels the ASP  [62]
Defendants’ consultants exchange emails about further investigations               [65]
Discussions on need to stabilise Arney Road Property  [67]
May Geoconsult Report  [69]
Defendants assert cancellation of ASP was a repudiation and themselves cancel
ASP  [73]

Proceedings commence [75]

Subsequent developments [76]

Questions for determination and relevant evidence [87]

Relevant provisions of the ASP [93]

Submissions of counsel for Mr Du [94]

Submissions of counsel for the defendants [106]

Analysis [119]

What was the settlement date? [120]

Was there a mutual agreement to vary the settlement date?  [121] Was there a valid notice to fix a new settlement date under cl 5.15?  [125] Was there a valid late settlement notice?  [143] Was the Arney Road Property untenantable on the settlement date?  [147] Is it relevant the Arney Road Property was under a Yellow Placard from
15 March?  [149]
Was Mr Du entitled to cancel the ASP?  [159]
Counterclaim  [162]

Result [163]

Costs [165]
Appendix: Relevant provisions of the ASP

[1] This proceeding concerns the operation of clauses in a standard form agreement for the sale and purchase of land that apply when damage is caused to the property by natural events occurring between the making of the agreement and settlement, and when settlement does not take place on the settlement date.

[2]The plaintiff, Ningfei Du, says he…

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 621
Case: [2025] NZHC 621
Decision Date: 24 March 2025

CaseChat Overview and Summary

The plaintiff, Ningfei Du, sought specific performance of a contract for the sale and purchase of the Arney Road Property, claiming he was entitled to the return of the deposit of $1,063,000 he paid following his successful tender to purchase the property. Mr Du sought specific performance of the defendants’ obligation to return the deposit after he cancelled the agreement for the sale and purchase (ASP) due to damage caused by the extreme weather events that took place over the Auckland Anniversary Day weekend in late January 2023. He also sought interest on the amount of the deposit from the date of cancellation to the date of payment, plus costs. The defendants argued that the property was not untenantable and Mr Du had no right to cancel the ASP. They argued that the purported cancellation was a repudiation of the ASP and the deposit was forfeited. The defendants counterclaimed for damages of $391,764.19 for losses they said they suffered as a result of Mr Du’s repudiation of the ASP and for interest on those losses.

The court found that the settlement date under the ASP was 31 January 2023 and there was no valid notice to fix a new settlement date under cl 5.15 of the ASP. It found that there was no valid late settlement notice under cl 13 of the ASP. It found that the Arney Road Property was untenantable on the settlement date and that it was irrelevant the Arney Road Property was under a Yellow Placard from 15 March. It found that Mr Du was entitled to cancel the ASP and that the cancellation did not amount to repudiation. The court ordered that the defendants return the deposit of $1,063,000, plus interest from the date of cancellation to the date of payment. The court dismissed the defendants’ counterclaim and ordered that the defendants pay the costs of the proceeding.

Orders