Elysian Property Trustee Limited v Wang - [2023] NZHC 1639

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2167

[2023] NZHC 1639

BETWEEN
ELYSIAN PROPERTY TRUSTEE LIMITED

Plaintiff

AND

DABIN WANG

Defendant

Hearing: 9 June 2023

Appearances:

S C I Jeffs for the Plaintiff

Marisa Brugeyroux / KLChiu for the Defendant

Judgment:

29 June 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

Application for summary judgment

This judgment was delivered by me on 29 June 2023 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Speakman Law (Peter Speakman), Auckland, for the Plaintiff
McVeagh Fleming (Marisa Brugeyroux/C R Andrews/K L Chiu), Auckland, for the Defendant

Copy for:
Sam Jeffs, Bankside Chambers, Auckland, for the Plaintiff

ELYSIAN PROPERTY TRUSTEE LIMITED v WANG [2023] NZHC 1639 [29 June 2023]

TABLE OF CONTENTS

Paragraph

Introduction [1]

Background [2]

EPTL’s application for summary judgment [6] Affidavit of Susan Ava Dickson, dated 7 November 2022 [8] Affidavit of Michael William Nees, dated 10 November 2022 [15] Affidavit of Benjamin Richard Johnson, dated 25 May 2023 [17] Supplementary affidavit of Susan Ava Dickson, dated 25 May 2023 [18]

Mr Wang’s opposition [25]

Affidavit of Eryanto Kurnia Widjaya, dated 29 May 2023 [26]

Legal principles [27]

Analysis [30]

Liability [32]

Conclusion in relation to liability [38]

Quantum [39]
Conclusion in relation to quantum [55]

Result [56]

Orders [57]

Introduction

[1] Elysian Property Trustee Limited (EPTL) seeks summary judgment against Dabin Wang (Mr Wang) for breach of contract arising from his non-compliance with a sale and purchase agreement (the Agreement).

Background

[2] EPTL is the trustee of Elysian Property Trust (the Trust) and is the registered owner of the properties at 18 and 20 Northcroft Street, Takapuna (the Properties).

[3] On 20 October 2020, EPTL and Mr Wang entered into the Agreement by which Mr Wang agreed to purchase the Properties for $15,000,000 plus GST (if any). Mr Wang paid the deposit but failed to settle the purchase on 2 June 2022.

[4] On 27 June 2022, after Mr Wang failed to comply with a settlement notice, EPTL cancelled the Agreement, retaining the deposit. EPTL initially attempted to resell the Properties through Bayleys, but eventually decided to retain them pending improvement of the market.

[5] EPTL now seeks summary judgment against Mr Wang for damages it claims to have suffered as a result of his failure to settle the purchase of the Properties.

EPTL’s application for summary judgment

[6]EPTL seeks orders:1

(a) That judgment be given against the Respondent on the first cause of action in the Applicant's statement of claim;

(b) That the Respondent pay the costs of and incidental to this application, including disbursements; and

(c) Such other orders as the Court sees fits.

[7]The grounds on which the orders are sought are:2

(a) The Applicant is the trustee of the Elysian Property Trust.

(b) The Applicant is the registered proprietor of the properties at 18 and 20 Northcroft Street, Takapuna (the

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.

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Details

Case: [2023] NZHC 1639
Decision Date: 29 June 2023

CaseChat Overview and Summary

Elysian Property Trustee Limited (EPTL) sought summary judgment against Dabin Wang (Mr Wang) for breach of contract. The court was required to determine whether summary judgment should be entered against Mr Wang for liability and for the quantum of damages claimed by EPTL for the breach. The court concluded that judgment should be entered against Mr Wang for liability for breach of the Agreement, as there was no dispute that he breached his settlement obligations under the Agreement. However, the court found that there was a sufficiently arguable dispute as to the quantum of damages to which EPTL is entitled, such that summary judgment should not be given in respect of the quantum of damages. The court determined that the appropriate date for assessing damages was a disputed issue, as was the valuation of the properties and whether EPTL took reasonable steps to mitigate its loss. These issues required evidence to be given at trial and could not be dealt with in a summary judgment context. The court granted EPTL's application for summary judgment against Mr Wang for liability for his breach of the Agreement only, and declined EPTL's application for judgment of the quantum of damages against Mr Wang. The issue of quantum of damages for which Mr Wang is liable should be determined at trial. The parties were directed to endeavour to agree costs within 20 working days of the date of this judgment. If no agreement was reached, counsel for EPTL was to file a memorandum as to costs, and counsel for Mr Wang would file a reply. A decision on costs would then be made on the papers.

Orders