Feng v Sea.TX Property Limited

[2023] NZHC 3825

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2733

[2023] NZHC 3825

BETWEEN

YANLANG FENG AND CHENGPIN CAI

Plaintiffs

AND

SEA.TX PROPERTY LIMITED

First Defendant

LING NING
Second Defendant

BARFOOT & THOMPSON

Third Defendant

Hearing:

On the papers

Counsel:

D Delic, S Lu and Z Evita for Plaintiffs R M Dillon for First Defendant

E R Harrison and S J MacIntosh for Second and Third Defendants

Judgment:

20 December 2023

JUDGMENT OF RADICH J

(Recalling substantive judgment in order to add interest to judgment sums)

[1]In my decision of 4 August 2023, I made orders:

(a)Rectifying an agreement for sale and purchase between the plaintiffs, as purchasers, and the first defendant, as vendor, to give effect to the parties’ common intention that the purchase price for a property was to be $1.58 million including GST, rather than $1.58 million plus GST.

(b)Requiring the sum of $237,000 (reflecting the value of the GST on the

$1.58 million price that had been held in trust pending the outcome of the case) to be repaid to the plaintiffs as damages.

FENG AND CAI v SEA.TX PROPERTY LIMITED [2023] NZHC 3825 [20 December 2023]

(c)Requiring the first defendant to pay to the plaintiffs the sum of $66,447 (being interest paid by the plaintiffs on the loan that was required to fund the payment of $237,000, as damages).

[2]                 In an application of 27 September 2023, the plaintiffs seek recall of the judgment for the purpose of including in the Court’s orders interest under s 10 of the Interest on Money Claims Act 2016 on the sum of $237,000 and on the sum of

$66,447.

[3]                 The first defendant does not oppose the recall request as such but asks that any interest awarded not involve double counting of interest in ways I come on to describe. The second and third defendants do not oppose the application.

[4]                 I am satisfied that the judgment should be recalled under r 11.9 of the High Court Rules 2016 to make provision for the interest claimed. I apply the time- honoured tests established by Wild CJ in Horowhenua County v Nash in which it was found that a judgment may be recalled where there has been a relevant statute or authority since the hearing, where counsel failed to direct the Court’s attention to a statute or authority or where for some other reason justice requires the judgment to be recalled.1 The position here is on all fours with the decision of Holland J in Brake v Boote in which it was said:2

It is quite apparent from my reasons for judgment that I failed to apply my mind to the relief sought under para (b) of the second cause of action in the amended statement of claim seeking interest from the date of settlement to the date of judgment in accordance with the provisions of the Judicature Act.

[5]                 The same is so here. The prayer for relief in the second cause of action sought interest under s 10 of the Interest on Money Claims Act 2016 on the sum of $230,000 from 12 December 2018 (the date of settlement of the transaction) to the date of judgment and interest on the bridging finance of $66,447 from 2 December 2019 (the date on which the finance was repaid in full with interest) to the date of judgment.

1      Horowhenua County v Nash (No. 2) [1968] NZLR 632 at [633].

2      Brake v Boote (1991) 4 PRNZ 86.

[6]                 Provision does need to be made for the interest claimed. However, Mr Dillon for the first defendant is right in the two primary points that are made in the first defendant’s memorandum of 20 October 2023:

(a)The $66,477 damages claim was in itself interest that was actually incurred and paid by the plaintiff over the period from 12 December 2018 until repayment on 2 December 2019. It would be double counting to award any further interest on the principal sum over that period. Accordingly, interest is claimable on the sum of $237,000 from 2 December 2019.

(b)Interest is not payable on the damages claim of $66,447, as this sum is in itself an interest calculation over the period during which the loan was outstanding – 12 December 2018 to 2 December 2019. To award interest on that sum would in effect be to compound the interest.

[7]                 For these reasons, I exercise the Court’s discretion to recall the 4 August 2023 decision. The decision itself need not be amended. Rather, this decision and the order I go on to make, can stand alongside it.

[8]                 The orders made in [107] of the 4 August decision are to include an order for judgment for interest on the sum of $237,000 from 2 December 2019 to the date of judgment.

Radich J

Solicitors:

Nolan & Lu, Hamilton for Plaintiffs
Queen City Law, Auckland for First Defendant

Wynn Williams, Auckland for Second and Third Defendants