English v Foley - [2019] NZHC 928

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2018-425-75

[2019] NZHC 928

BETWEEN
CONOR JOSEPH ENGLISH

Plaintiff

AND

WAYNE ANTHONY FOLEY

First Defendant

AND

LAUREL HILLS LIMITED (formerly

known as Ladies Mile Properties Limited) Second Defendant

Hearing: 2 April 2019

Appearances:

A J Logan for Plaintiff

A S Olney for Defendants

Judgment:

30 April 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

(on defendants’ application for summary judgment) REDACTED VERSION

[1] This proceeding concerns the circumstances under which the first defendant, Mr Foley, was the successful tenderer in relation to a development block of land at Ladies Mile in Queenstown and whether Mr Foley submitted the tender on behalf of the plaintiff, Mr English alone or on his own behalf and on behalf of Mr English. Mr Foley incorporated the second defendant, Laurel Hills Ltd (formerly known as Ladies Mile Properties Ltd) (“Ladies Mile”) to complete the purchase of the land after his tender was accepted. Mr Foley’s summary judgment application proceeded on the basis that there was no distinction to be drawn between the first and second defendants and so this Judgment shall only refer to the second defendant, Ladies Mile, where necessary.

ENGLISH v FOLEY & ANOR [2019] NZHC 928 [30 April 2019].

Background

[2] The events leading to Mr Foley lodging the tender for the Ladies Mile land took place over a relatively short period, there being approximately three weeks from the possibility of a tender being lodged, to an agreement for sale and purchase being entered into by the vendor with Mr Foley or nominee. The events cover the period from 15 April 2018 to 4 May 2018.

[3] Prior to mid-April 2018, Mr English and Mr Foley had no connection. Both knew a Marc Holtzman, who is a resident of Hong Kong but who has a range of business and philanthropic ventures in a number of countries. Mr Foley got to know Mr Holtzman through a property acquisition he assisted Mr Holtzman with. Mr Foley is also a builder/project manager and through his construction company built Mr Holtzman’s new Queenstown residence which was a very substantial project.

[4] Through that connection Mr Holtzman and Mr Foley’s relationship developed to the extent that they developed what Mr Foley described as a high level of mutual understanding and trust, which led Mr Holtzman to say in the middle of 2017 that he and Mrs Holtzman, “… would be pleased for an opportunity to complete a joint project with [Mr Foley] in the future”.

[5]Mr Foley goes on to recount that an initial project was considered and rejected.

[6] Mr English in his affidavit describes having an enjoyable relationship over a number of years with Mr Holtzman whom he describes as an “international business man”. He says his relationship with Mr Holtzman is a “close, personal and trusted relationship built over recent years”. Mr English says he was looking for property development opportunities in Queenstown and looking to partner…

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: [2019] NZHC 928
Decision Date: 30 April 2019

CaseChat Overview and Summary

English v Foley concerns the circumstances under which the first defendant, Mr Foley, was the successful tenderer in relation to a development block of land at Ladies Mile in Queenstown and whether Mr Foley submitted the tender on behalf of the plaintiff, Mr English alone or on his own behalf and on behalf of Mr English. Mr Foley incorporated the second defendant, Laurel Hills Ltd (formerly known as Ladies Mile Properties Ltd) to complete the purchase of the land after his tender was accepted. The defendants' application for summary judgment proceeded on the basis that there was no distinction to be drawn between the first and second defendants. The court found that the application for summary judgment was dismissed because there was an arguable basis for the claim to be recast. The court held that the defendants' application for summary judgment was dismissed and no order was made as to costs.

Orders