Elysian Property Trustee Limited - [2024] NZHC 3604

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2167

[2024] NZHC 3604

BETWEEN
ELYSIAN PROPERTY TRUSTEE LIMITED

Plaintiff

AND

DABIN WANG

Defendant

Hearing: 29 October 2024– 31 October 2024

Appearances:

S Jeffs for Plaintiff

M Davies and K L Chiu for Defendant

Judgment:

29 November 2024

Reissued:

4 December 2024

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 29/11/ 2024 at 12 pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:
S Jeffs, Auckland
Speakman Law, Auckland Meredith Connell, Auckland

ELYSIAN PROPERTY TRUSTEE LIMITED v WANG [2024] NZHC 3604 [29 November 2024]

Introduction [1]

Background[9]

The pleadings as to quantum [33]

Issues[43]

Discussion[44]

The evidence[44]

Is Elysian able to rely on cl 11.4(3) in the Agreement to calculate the loss based on resale within 12 months?[67]
What is the correct date at which to assess Elysian’s loss?[75]

Failure to mitigate[91]

Chain of causation[98]

Outcome[109]

Default interest[117]

Other interest[123]

Result[135]

Costs[136]

Introduction

[1] Elysian Property Trustee Ltd (Elysian) seeks damages against Dabin Wang for breach of an agreement for sale and purchase (Agreement) in respect of two commercial properties situated at Northcroft Street, Takapuna (the Properties).

[2] On 29 June 2023, Associate Judge Taylor granted Elysian’s application for summary judgment as to liability for breach of the Agreement.1 Judgment as to damages was declined on the basis that the quantum of damages should be determined at trial. Elysian says it suffered loss because the price it was able to obtain upon resale was lower than the price in the Agreement.

[3] The purchase price in the Agreement was $15,000,000. Elysian resold the Properties for $10,500,000 in June 2023 after the application for summary judgment was heard, but before judgment was given. The resale of the Properties settled on 21 June 2023.

[4] Elysian says that its loss crystallised at the time of resale. In its opening submissions it sought damages of $2,783,454.89; plus default interest on the unpaid amount in accordance with the Agreement, from the date of settlement to the date of settlement of the resale; interest under the Interest on Money Claims Act 2016 (IOMCA); and costs. In closing submissions Elysian sought damages of
$4,482,690.44 inclusive of default interest.

[5] Mr Wang’s position is that Elysian suffered no loss for which he is liable. He pleads three affirmative defences.

[6] First, he says that Elysian’s loss should be assessed at the time it elected to retain the Properties in August 2022 at which time Mr Wang says the Properties were worth in excess of $13,000,000.

[7] Secondly, Mr Wang says Elysian failed to take reasonable steps to mitigate its loss by failing to accept an offer of $13,000,000 from LDW Ltd in February 2023.

[8] Thirdly, Mr Wang says that there was a novus actus interveniens because the Properties were sold to a third party at auction in April 2023 for $13,200,000. Although that sale did not proceed, Mr Wang says…

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 Elysian Property Trustee Limited

Details

AGLC: Elysian Property Trustee Limited [2024] NZHC 3604
Case: [2024] NZHC 3604
Decision Date: 29 November 2024

CaseChat Overview and Summary

Elysian Property Trustee Limited brought an action against Dabin Wang for breach of a contract for the sale and purchase of two commercial properties. The contract was for a purchase price of $15,000,000 and the settlement date was 2 June 2022. Mr Wang did not settle on the settlement date. Elysian issued a settlement notice requiring Mr Wang to settle within 12 working days. He did not do so. On 27 June 2022, Elysian cancelled the Agreement. Elysian resold the properties for $10,500,000 in June 2023. The resale settled on 21 June 2023. Elysian sought damages of $2,783,454.89 plus interest and costs. The primary issues for determination were whether Elysian was entitled to rely on a contractual term in the Agreement to calculate its loss, what the correct date was to assess Elysian’s loss, whether Elysian fulfilled its duty to mitigate its loss, whether the auction agreement broke the chain of causation, and what the quantum of damages should be. The Court rejected the affirmative defences raised by Mr Wang. The Court found that Elysian’s loss crystallised at the time of the resale in June 2023. The Court found that the auction process did not break the chain of causation. The Court found that Elysian had made efforts to mitigate its loss by marketing the properties and attempting to sell them at auction. The Court awarded Elysian damages of $2,752,118.03, default interest, and interest on the damages amount in accordance with the Interest on Money Claims Act 2016. The Court directed the parties to attempt to agree costs and ordered the parties to provide memoranda as to the appropriate rate of interest and the net income figure. The Court made directions as to the procedure for determining those issues.

Orders