Easternmanor Development Limited v Yeshe Development Limited - [2025] NZHC 1455

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2342

[2025] NZHC 1455

BETWEEN
EASTERNMANOR DEVELOPMENT LIMITED

Plaintiff

AND

YESHE DEVELOPMENT LIMITED

Defendant

Hearing: 27 May 2025 (by AVL)

Appearances:

R O Parmenter for Plaintiff P J Wright for Defendant

Judgment:

5 June 2025

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 5 June 2025 at 2.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

………………………..

EASTERNMANOR DEVELOPMENT LIMITED v YESHE DEVELOPMENT LIMITED [2025] NZHC 1455 [5 June 2025]

[1] Easternmanor Development Limited (Easternmanor) obtained summary judgment against Yeshe Developments Limited (Yeshe) in August 2023, following Yeshe’s failure to settle three vacant lots it had purchased from Easternmanor. All three contracts contained the same terms including price and provided that settlement was to be 20 working days after the issue of titles.1

[2] The summary judgment decision was not appealed. Easternmanor, on 7 August 2024, issued a statutory demand against Yeshe, which it did not apply to set aside. When liquidation proceedings were issued by Easternmanor, Yeshe filed a statement of defence. Easternmanor applied to strike out the statement of defence as an abuse of process, on the basis that it raises a defence that could and should have been brought in the summary judgment application. By the time the matter came on for hearing, counsel had agreed the hearing could be treated as an opposed application for liquidation.

Defences raised in the summary judgment application

[3] A number of defences were raised and rejected in the summary judgment hearing, but only one is relevant to the defence now relied on by Yeshe.

[4] Under the heading “Breach of the Fair Trading Act 1986 — when were titles to issue”, the summary judgment decision addressed the evidence of Mr Miao, a director of Yeshe. Mr Miao, in his affidavit in the summary judgment proceeding, said: “The agent for [Easternmanor] stated the titles for the properties would be available in March/April 2022 at the latest”. Titles did not issue until November 2022. I note in this proceeding, Mr Miao says the agent told him title would issue in February/March 2022.

[5] Mr Miao referred to a WeChat message with the real estate agent who was referred to in the summary judgment decision as “Gary”. The WeChat message produced was dated 3 February 2022, however, the contracts in issue were made on

1 Easternmanor Development Ltd v Yeshe Development Ltd [2023] NZHC 2317 [the summary judgment decision].

21 October 2021. Presumably that was why the defence was raised under the Fair Trading Act.

[6] I recorded in the summary judgment decision that the WeChat message was not relied on as a pre-contractual misrepresentation, given that it came after the date of the contracts when Yeshe had committed to purchase the properties. I also queried whether Gary continued to be the agent for Easternmanor at the time of these statements,…

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 Easternmanor Development Limited v Yeshe Development Limited

Details

AGLC: Easternmanor Development Limited v Yeshe Development Limited [2025] NZHC 1455
Case: [2025] NZHC 1455
Decision Date: 5 June 2025

CaseChat Overview and Summary

Easternmanor Development Limited sought to place Yeshe Development Limited into liquidation after Yeshe failed to settle on three vacant lots as per their contracts. The court initially granted Easternmanor summary judgment in August 2023, and Yeshe did not appeal this decision. However, Yeshe now claims that Easternmanor's real estate agent made false pre-contractual statements about when the titles would be available, which led to Yeshe's inability to settle on time. The court considered whether this new defence could be raised despite it not being presented in the summary judgment application. The central issue was whether Yeshe's attempt to raise this defence in the liquidation proceedings constituted an abuse of process. The court found that while the new defence could have been raised earlier, the reason given for its omission—counsel error—did not sufficiently justify raising it now. The court also noted that the new defence concerned a pre-contractual misrepresentation, which was distinct from the earlier defence raised under the Fair Trading Act. Given the overall circumstances, the court concluded that allowing Yeshe to raise this new defence would undermine the finality and efficiency of the legal process, and therefore, it was an abuse of process. Consequently, the court ordered that Yeshe Development Limited be placed into liquidation.

Orders