Golden Garden Ltd v Zhao
[2017] NZCA 227
•31 May 2017 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA496/2016 [2017] NZCA 227 |
| BETWEEN | GOLDEN GARDEN LIMITED |
| AND | HONGWEI ZHAO AND ZHIDONG HUANG |
| Hearing: | 2 May 2017 |
Court: | Miller, Gilbert and Katz JJ |
Counsel: | W McCartney for Appellant |
Judgment: | 31 May 2017 at 11.00 am |
JUDGMENT OF THE COURT
AThe application for leave to adduce further evidence is granted.
BThe appeal is allowed. The judgment entered in the High Court is set aside.
CThe appellant is entitled to costs as for a standard appeal on a band A basis
and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
Introduction
Golden Garden Ltd appeals against a decision of Associate Judge Bell granting summary judgment on a claim by Hongwei Zhao and Zhidong Huang (the vendors) for the sum of $730,000, being the deposit payable under an unconditional agreement for sale and purchase of a property in Kumeu for $7.3 million.[1] Golden Garden contends that the vendors’ agent knew that it was only prepared to purchase the property subject to conditions as to finance and due diligence and the agent misled it into believing that the agreement she presented for signing contained these conditions. Golden Garden claims that the vendors are not entitled to enforce the agreement in these circumstances.
[1]Zhao v Golden Garden Ltd [2016] NZHC 2204.
The Associate Judge found that Golden Garden did not have an arguable defence to the claim based on the plea of non est factum, concluding that the evidence filed on its behalf could be disregarded as being implausible and the defence would be precluded by negligence in any event.[2]
[2]At [29] and [37].
There are two principal issues to consider:
(a)If Golden Garden’s evidence were to be accepted at trial, would it provide an arguable defence to the claim?
(b)If so, does Golden Garden’s evidence meet the threshold of credibility such that it cannot safely be disregarded and judgment entered without a trial?
Golden Garden has applied for leave to adduce further evidence in support of its appeal, and this evidence is relevant to both questions.
We start by summarising the evidence given on behalf of Golden Garden in the High Court and the Associate Judge’s reasons for concluding that there was no arguable defence to the claim. We then consider the application to introduce further evidence in support of the appeal. Finally, we assess whether there is an arguable defence to the claim by considering the two questions posed above.
Golden Garden’s evidence in the High Court
Meihong Kong is the sole director of Golden Garden. She was referred to in the correspondence and in the High Court by her married name, Mrs Liang. We will do the same.
Mrs Liang completed the only substantive affidavit filed in the High Court in opposition to the application for summary judgment. The affidavit is written in Mandarin and was prepared based on instructions Mrs Liang gave to her solicitor in Mandarin as translated through an interpreter. The interpreter provided an affidavit confirming this and the accuracy of his translation of the affidavit into English.
Mrs Liang says in her affidavit that she does not read, write or speak English, nor does she understand spoken English. She says that her daughter often translates for her. However, Mrs Liang says that she is able to read and write English numerals.
Mrs Liang explains that her interest in the Kumeu property came about during the course of her purchase of another property, in Silverdale, that was shown to her by the same real estate agent. She says that when she viewed the Silverdale property she recognised the vendors’ agent as someone she had met previously at a mutual friend’s house. Mrs Liang says that the agent knew that she could not speak or read English and all of their discussions were conducted in Mandarin. Mrs Liang says that the agent explained in Mandarin the agreement to purchase the Silverdale property before she signed it. This was at a meeting that commenced around midday on 6 April 2016 at Mrs Liang’s restaurant. This agreement was unconditional and the purchase price was $3.38 million.
After signing the agreement for the Silverdale property, Mrs Liang says that the agent invited her to submit a tender for the Kumeu property which had an asking price of $8 million. The agent told her that tenders were closing that day. Mrs Liang says that she told the agent that she was not interested in purchasing the property and did not have enough money to buy it. However, Mrs Liang says that the agent pleaded with her to submit a tender as a favour to her because she had only been in the industry for a couple of years and it would give her an opportunity to meet the vendor and extend her contacts and client base. Mrs Liang claims that the agent told her that the Kumeu property would not sell unless the price was over $7.5 million and that it would therefore be safe to offer this amount without being at risk of winning the tender. Mrs Liang says that she agreed to tender $7.3 million on three conditions. First, the purchase would be conditional on satisfactory completion of due diligence within 20 working days. Second, the agreement would be conditional on finance being arranged before August 2016. Third, settlement of the purchase was to be deferred for 12 months.
Mrs Liang says that the agent used scissors to cut out some pre-printed clauses and then glued these onto the tender document. The agent also filled in the other details, including the settlement date in 12 months’ time. Mrs Liang says that the agent explained the details to her in Mandarin and that she relied on her explanation in signing the tender.
The agent asked for a cheque for $730,000, being the 10 per cent deposit. Mrs Liang says that the agent wrote on the cheque butt exactly what she wanted her to write on the cheque. Mrs Liang says that she copied this writing when filling out the Golden Garden cheque. Mrs Liang claims that although she completed and signed the cheque, she told the agent at the time that there was not enough money in Golden Garden’s account to cover it.
Mrs Liang says that the agent called her that afternoon and asked her if she would agree to bring the settlement date forward to June 2016 and increase the price. Mrs Liang says that she was not prepared to increase the price but accepted the change to the settlement date, reasoning that it would be safe for her to do so because the price was low and she would remain protected by the conditions. The agent told her that she would send her a text asking for confirmation by reply text.
Mrs Liang says that she got a text from the agent at 2.25 pm but it was in English and she could not read it. However, she could see the date “2016-06-30” and understood that this was the new settlement date, as discussed. Mrs Liang sent a reply text at 2.55 pm saying in Mandarin “confirmed”. She says that this was to confirm the change to the settlement date as discussed in the earlier conversation and was not a response to the substance of the text because she could not read it. Mrs Liang says that she did not appreciate at the time that the text read as follows:
Revised offer on 116 Station Road, Kumeu
Dear Mrs Liang
Please confirm through email on our revised offer:
Unconditional
$7.3MM
10% deposit payable to Barfoot & Thompson trust account on acceptance
Settlement: 2016-06-30
Once get your confirmation, I will go to present to vendor in the office now.
Cheers
[Vendors’ agent]
While Mrs Liang was having dinner with friends at her restaurant that evening, the agent brought in the agreement for her to sign. Mrs Liang says that the agent told her that the only change was to the settlement date. Mrs Liang says she asked where the tender document was. She says the agent told her that because the original document was untidy, it had been replaced. Mrs Liang says that she signed the agreement on the basis of the agent’s assurance that it was on the same terms as the tender apart from the settlement date.
The agent sent Mrs Liang an email at 8.26 pm congratulating her on winning the tender and attaching a copy of the agreement which by then had been signed by the vendors. Mrs Liang says that she did not see this email at the time but her daughter translated it for her later.
At about 9.00 pm that same evening, the agent came to the restaurant and told Mrs Liang that she had won the tender and that the agreement was unconditional. Mrs Liang says that she was not happy. She restated that she never intended to buy the property and noted that the agent had not even taken her to see it.[3] Mrs Liang asked how the agreement had become unconditional when she had put conditions in the tender. Mrs Liang claims that the agent did not answer this question. Instead, she attempted to reassure Mrs Liang that the purchase was a bargain and stated that the land was ready to be subdivided. According to Mrs Liang, the agent said that she could sell the property again if she did not want it. Mrs Liang says that she told the agent that she did not intend to buy the property and that the vendors should accept the next highest bid.
[3]Mrs Liang acknowledges that another agent had pointed the property out to her some weeks earlier while driving to another property but she says that this was as close as she had ever been to it.
The agent emailed her manager that evening saying:
I just got the phone call from my purchaser just now, explaining that they realized it would be very difficult for them to get the settlement money ready by the contract time 06-30-2016.
As there are another multi-offer for 116 Station Road today; my purchaser is asking can they cancel the contract today? And the vendor can choose the 2nd preference offer.
Apologize for the urgent communication from my buyer.
Please help to communicate with the vendor on this and let us know as soon as you are available.
Mrs Liang says that at 10.00 pm she called the agent again and asked her to contact the vendors immediately and cancel the agreement. She repeated that she had made a conditional offer, not an unconditional offer, and she did not have the money to buy the property. Mrs Liang says that she sent a text at 10.27 pm again asking the agent to cancel the agreement and followed this up with a further text at 7 o'clock the following morning.
The manager responded to the agent on 7 April 2016 and this was forwarded to Mrs Liang at 8.14 am:
No, they have an offer in place that has been accepted by the Vendor at the multi offer.
Their offer was the most acceptable to him.
The deposit cheque needs to be banked into the Barfoot and Thompson Trust account today. If the settlement date is to[o] early for them they can discuss between the solicitors to see if an extension is at all possible.
[Agent’s name] these things need to be worked out before a purchaser puts an offer to a Vendor, not after it has been accepted.
I trust they can work hard and get everything in place for the existing time lines on the contract.
Mrs Liang says that after her daughter translated this email to her, she felt that she had been “cheated”. She sent a text to the agent asking her to send a copy of the tender document, but she received no reply and the tender has never been produced.
There were insufficient funds in Golden Garden’s account and the cheque for the deposit was dishonoured. The vendors cancelled the agreement on 14 April 2016.
The vendors re-sold the property after these proceedings commenced for $7,025,000 but settlement is not due until 15 August 2017.
In seeking summary judgment, the vendors had the onus of showing that there is no arguable defence. The notice of opposition to the application for summary judgment raises the defence of non est factum but the evidence may also support other defences.
High Court judgment
Despite her evidence to the contrary, the Associate Judge found that Mrs Liang has “an adequate command of the English language”. This finding was based on the following analysis:
[26] For both her names, Mrs Liang does not write her signature in Chinese characters but in cursive script. The cheque she signed for the deposit is in evidence. That is in her handwriting in cursive script. That handwriting does not suggest that she is unfamiliar with writing English.
[27] When the land agent communicated with her on 4 April 2016 she sent an information pack in English. In the land agent’s evidence there are also copies of texts in English between the land agent and Mrs Liang. These show the same grasp of English as shown by native speakers of English when they text each other. That is, the language might not meet the standards of grammatical purists, but they are intelligible without obvious errors.
[28] … these matters readily show that Mrs Liang herself does have an adequate command of the English language. I bear in mind that on the day she had signed an agreement for the Silverdale property for some $3.3m, again, an agreement written in English. When she entered into important contractual arrangements, she was comfortable using English without seeking other professional assistance.
Next, the Associate Judge rejected Mrs Liang’s explanation that she provided the tender as a favour to the agent, regarding it as implausible:
[29] Mrs Liang’s explanation for providing the tender – that she was doing it as a “favour” for the land agent – is implausible. To my mind, it does not make any sense that anyone would go through the pretence of making a serious offer in a heated property market for the purchase of a property available for development simply as an empty charade.
[30] There is no dispute as to the text that the agent sent at 2:25pm on 6 April 2016. The text is significant as showing the land agent’s understanding of the agreement which she was trying to bring about – an unconditional agreement for $7.3 million with settlement on 30 June 2016. Mr McCartney accepted that that text was not an erroneous explanation of the agreement proposed by the land agent. It also shows that Mrs Liang’s explanation of putting up a conditional agreement without a serious intent to buy the property does not wash. From the land agent’s text it is clear that she was working on trying to obtain an agreement unconditional at $7.3 million. The price offered by Mrs Liang also suggests a serious intent to buy the property at a competitive price. If Mrs Liang was only putting in an agreement to go through the motions, she would have put in an offer at a much lower sum. I do not accept her explanation. It is improbable.
The Associate Judge also considered that it was inconceivable that the vendors’ agent would accurately summarise the terms of the proposed amended tender in the text sent at 2.25 pm on 6 April and then give an inaccurate explanation of the agreement when presenting it to Mrs Liang for signing later that evening:
[31] The text is also important when assessing Mrs Liang’s evidence as to the explanation that the agent gave when she brought the agreement for signing. According to Mrs Liang, the agent told her that the agreement was the same as what she contends the tender document was, apart from the change to the settlement date. That requires the court to accept that the agent changed her story between 2:25pm, when she gave an accurate explanation as to the agreement, and 6:00pm, when she gave an inaccurate explanation. I cannot think of any plausible reason why the land agent would give an accurate explanation and then change that explanation later when the agreement was present for signing. That aspect of the defendant’s case is also implausible.
Finally, the Associate Judge placed considerable reliance on two texts Mrs Liang sent to the agent in Mandarin seeking to withdraw from the agreement. The Associate Judge considered it highly significant that Mrs Liang did not specifically state in either of these texts that she had been misled. The first of these texts was sent at 10.27 pm on 6 April 2016 and the second at 7.00 am the following morning. They have been translated as follows:
[P]lease cancel the contract of 116 Station Road no matter what. My husband had already said that a conditional contract was needed. He said that without going through the board of directors, the purchase could not be made. Neither would the company make payment. Please hurry up and notify the property owner and your agent company to handle properly. Please! Thanks sincerely.
It was mainly that you called me and talked about changing to an unconditional contract. Signed without consent. He said that the rules had been breached and the company would definitely not give consent.
After quoting these texts, the Associate Judge stated:
[34] These texts and others show the real reasons for the cancellation. Mrs Liang needed the support of other investors to purchase and they had not given their approval. She was now trying to back out. If she had been misled as to the effect of the agreement, she should have stated so clearly. But she did not.
In conclusion, the Associate Judge was satisfied on the evidence that Mrs Liang understood English and that she was lying in claiming otherwise:
[35] I am satisfied on the evidence that Mrs Liang is much better at English than she has let on in her affidavit. Her assertions of ignorance of English are belied by contemporary documents.
The Associate Judge accepted that if Mrs Liang had been misled by the vendors’ agent into believing that the agreement was conditional, when it was unconditional, that could provide an arguable defence based on the plea of non est factum. Nevertheless, for the reasons given, he concluded that Mrs Liang’s evidence that she had been misled could be disregarded as simply not credible.
In any event, the Associate Judge considered that the defence of non est factum would fail because Mrs Liang did not take reasonable care in signing an agreement she did not understand:
[37] … In any event, for the defence to be arguable, Mrs Liang has to have taken all reasonable care in the circumstances. It is not sufficient for her simply to say that she trusted the land agent. The land agent, after all, was acting for the vendors in trying to obtain an agreement for sale and purchase.
The Associate Judge summarised his conclusion that the defence was not arguable as follows:
[39] Weighing up Mrs Liang’s evidence, in the light of contemporary documents and the circumstances, I find improbability piled upon improbability. I do not accept that the company has any show at all of arguing for a defence of non est factum. The defence is not tenable and accordingly the plaintiffs succeed on the application for summary judgment.
Application for leave to adduce further evidence
Mr McCartney applies for leave to adduce six further affidavits in support of Mrs Liang’s appeal, including one translating a further affidavit from Mrs Liang. This evidence suggests that the evidential findings made by the Associate Judge, particularly as to Mrs Liang’s understanding of English, are unsafe. Mr McCartney submits that the affidavits should be admitted in the interests of justice, especially given that the relevant findings were partly based on reply evidence from the agent to which Mrs Liang had no right to respond.
Mr Lenihan opposes the application, arguing that the evidence is not fresh, credible, or cogent. He submits that even if the further evidence is taken into account, there is still no arguable defence.
In her further affidavit, Mrs Liang maintains that she can only speak a few words in English like “hello”, “goodbye” and “thank you” and cannot speak or understand whole sentences. Mrs Liang responds to the points made by the agent in her reply affidavit, which the Associate Judge appears to have placed some reliance on, as follows:
(a)Information pack in English – Mrs Liang accepts that she received an information pack from the agent in English on 4 April 2016. However, she says that she relies on her daughter to translate documents sent to her in English.
(b)Signature in cursive script – Mrs Liang explains that in China there is an official phonetic language called “Pinyin” which uses English characters taught at schools. She claims that she, like most people in China, can write their own name using English characters whether or not they can read or write English. She says that she signs using the name “Hong” which is her maiden name.
(c)Writing on cheque – Mrs Liang repeats her earlier evidence that when she completed the cheque she copied the words written out for her on the cheque butt by the agent. She explains that she studied calligraphy in China and is good at copying foreign writing even though she does not understand the words. She now understands that she made some errors in this copying process, as identified by Mr McCartney (“Bafoot & Thomsin” or “Bafurt & Thomsin” instead of Barfoot and Thompson and “seven hundreen thre thousand dollar only” or “seven hundreen threty thousand dollmr oily” instead of seven hundred and thirty thousand dollars only).
(d)Texts between Mrs Liang and the agent in English – Mrs Liang claims that there are no texts written by her in English and none have been produced by the agent. She acknowledges that some emails were written in English but says that these were typed for her by her daughter.
(e)Silverdale agreement written in English – Mrs Liang says that she has never signed an agreement written in English without assistance from someone who can translate it for her. She repeats that she relied on the agent to explain the agreement to purchase the Silverdale property before she signed it.
(f)Text from agent at 2.25 pm on 6 April 2016 – Mrs Liang says that this was the only text the agent sent that day in English. When she replied in Mandarin “confirmed”, she thought that she was only confirming the change to the settlement date because that was what had been discussed in the earlier telephone discussion conducted in Mandarin.
(g)Price offered – Mrs Liang reiterates that she understood from the agent that any offer would need to exceed $7.5 million to be successful. She says that she also thought that the finance and due diligence conditions meant that Golden Garden would only have to proceed with the purchase if there were investors willing to fund it and if due diligence established that it was worth proceeding.
(h)Implausible that the agent would summarise the agreement correctly in her text in English at 2.25 pm and give a different explanation in Mandarin when the agreement was signed at 6.00 pm – Mrs Liang maintains that she did not understand the text in English and the agent assured her before she signed the agreement that the only change from the tender was to the settlement date.
(i)Real reason for cancelling was that she could not get support from other investors – Mrs Liang maintains that her offer to purchase the property was subject to finance and she claims she was entitled to cancel.
Mrs Liang’s daughter, Megan Liang, who is a teacher, has completed an affidavit stating that her mother is not literate in English. She says that she usually manages her mother’s emails, although other people sometimes help when she is not available. She confirms that the emails produced by the agent in her reply affidavit, which are in English, were typed by her. She states that she read the information pack sent by the agent relating to the Silverdale property and explained it to her mother. She confirms her mother’s evidence that she agreed to submit the conditional tender for the Kumeu property as a favour to the agent. She also says that she was not present when the text in English was sent by the agent at 2.25 pm on 6 April, nor when her mother signed the agreement that evening. She confirms that her mother can sign her name using English characters in Pinyin. She also confirms that her mother studied calligraphy and is good at copying letters.
Anna Lin, a student at the University of Auckland studying arts and law, has also completed an affidavit. She says that she was employed by Mrs Liang as a waitress at the Golden Garden restaurant during 2015. She says that Mrs Liang cannot speak, read or write English. She confirms that Mrs Liang can say a few simple words in English like “hello” or “thank you” but she cannot communicate in any substantive way in English. Ms Lin says that she used to translate emails sent to Mrs Liang in English because Mrs Liang could not read them herself. She said that she helped her with online banking because Mrs Liang could not read the bank’s website which was in English. Finally, Ms Lin states that many Chinese speaking people can write in Pinyin.
Sylvia Williams, a real estate agent, has provided a brief affidavit stating that she has dealt with Mrs Liang on a number of occasions and believes that she is completely illiterate in English. In all her dealings with Mrs Liang, Ms Williams has used a Chinese colleague as a translator.
Finally, Xiaoman Cui, a bank manager, has provided an affidavit stating that she has known Mrs Liang for about five years, both socially and professionally. She confirms that Mrs Liang cannot understand spoken English and cannot speak, read or write in English. Ms Cui says that her husband cannot speak Chinese and can only communicate with Mrs Liang through an interpreter. She also confirms the evidence of the other deponents that it is common for Chinese to learn to write Pinyin.
Although this evidence is not fresh in the sense that it could not have been obtained prior to the hearing in the High Court, we bear in mind that Golden Garden had no right to respond to the agent’s reply affidavit. We accept Mr McCartney’s submission that this is a reasonable explanation for Golden Garden not filing the evidence earlier. We consider that the evidence is credible. It is also cogent. It supports Mrs Liang’s account that she does not understand English, contrary to the Associate Judge’s finding. This finding was a key factor in the Associate Judge’s analysis and decision. The evidence also provides some support for other aspects of Mrs Liang’s account, which the Associate Judge dismissed as being implausible. For these reasons, we are satisfied that the application for leave to introduce this further evidence should be granted in the interests of justice.
If Golden Garden’s evidence were to be accepted at trial, would it provide an arguable defence to the claim?
Mrs Liang’s evidence is that the agent explained the tender document to her before she signed it and that it recorded an offer that was conditional on due diligence and finance, with settlement deferred for 12 months. This evidence is supported by Mrs Liang’s daughter. It seems odd that the vendors’ agent has been unable to produce this important document. However, if it could be established that the tender did contain these conditions, this would support Golden Garden’s case that Mrs Liang was not negligent in signing the tender even though it was written in a language that she did not understand.
Mrs Liang claims that all of her discussions with the agent were in Mandarin and that she cannot understand English. She says that the agent spoke to her in Mandarin requesting only one change to the tender, to bring forward the settlement date. Mrs Liang says that the agent told her that she was going to send a text to get her confirmation of her agreement to this change. If this evidence is accepted, that would raise a question as to why the agent would send her a text written in English recording not only the change to the settlement date but also that the agreement was unconditional. Mrs Liang’s evidence is that she signed the replacement agreement in reliance on the agent’s assurance that the only change from the tender was to the settlement date.
If all of this evidence is accepted, it is at least arguable that Mrs Liang was entitled to rely on the agent’s assurance and was not negligent in signing the agreement on that basis. Mr Lenihan responsibly conceded this. We respectfully disagree with the Associate Judge’s conclusion that Mrs Liang was not entitled to trust the agent because she was acting for the vendors.[4]
[4]Zhao v Golden Garden Ltd, above n 1, at [37].
It follows that if all of Golden Garden’s evidence is accepted, it could provide an arguable defence to the claim based on the plea of non est factum: the document was of a fundamentally different character from that intended by Golden Garden; Mrs Liang was arguably not negligent in signing the agreement because she was entitled to rely on the agent’s explanation of it; and Mrs Liang was arguably misled by the vendors’ agent as to the effect of the agreement. At this preliminary stage, we could not safely exclude the possibility of other defences succeeding, including misrepresentation, breach of the Fair Trading Act 1986 or even, perhaps, mistake.
Does Golden Garden’s evidence meet the threshold of credibility?
The principal reason given by the Associate Judge for rejecting Mrs Liang’s evidence as failing to meet the threshold of credibility was his finding that Mrs Liang has “an adequate command of English” and was “comfortable using English” when “she entered into important contractual arrangements” “without seeking other professional assistance”.[5] For the reasons given, we are satisfied that this finding could not be made in the context of the contested application for summary judgment and has been shown to be unsafe. If this central premise is removed, the supporting reasons for disregarding Mrs Liang’s evidence as being implausible lose some of their potency.
[5]At [28].
Mrs Liang’s daughter confirms her mother’s explanation that she submitted the tender as a favour to the agent. This evidence will no doubt be subjected to challenge but we are not persuaded that it can be summarily dismissed at this stage as being completely implausible. Such an explanation might be plausible if it is established at trial that the tender contained the conditions asserted by Mrs Liang as to due diligence and finance; provided for settlement to be deferred for 12 months; and was priced materially below what she realistically considered the property would sell for based on what the vendors’ agent told her. We do not consider that it was safe to conclude, as the Associate Judge did, that “the price offered by Mrs Liang also suggests a serious intent to buy the property at a competitive price”.[6] The price tendered needs to be viewed in the context of the other three conditions which, taken together, would make the offer far less attractive to the vendors and considerably less risky for Golden Garden.
[6]At [30].
We agree with the Associate Judge that the text sent by the agent to Mrs Liang at 2.25 pm on 6 April presents a considerable challenge for Golden Garden because it records that the revised offer is unconditional. However, if it is proved that Mrs Liang does not understand English and the agent knew this, and the agent also knew that Mrs Liang was relying on her to explain the agreement, then this would raise the question as to why the agent sent this important text in English.
The final reason given by the Associate Judge for dismissing Mrs Liang’s evidence as implausible was her failure to state that she had been misled in two texts she sent after discovering that the agreement was unconditional.[7] Again, this is a matter that will no doubt be explored at trial but it is not a sufficient reason to reject Mrs Liang’s account summarily. Mrs Liang claims that when she discovered that the agreement was unconditional, she immediately said to the agent at the restaurant that she never intended to buy the property and asked how the agreement became unconditional when she had put conditions in the tender. It appears that there were other communications between Mrs Liang and the agent that evening. The fact that neither of the texts contains an express allegation that Mrs Liang was misled does not mean that her account is completely untenable. The texts can be read in a way that is consistent with Mrs Liang’s account.
[7]At [34].
In summary, we are satisfied that Mrs Liang’s evidence, supported by the further evidence introduced on appeal, cannot safely be disregarded as failing to meet the threshold of credibility. The vendors’ claim cannot be determined without resolving the critical evidential contests. This can only be done at trial.
Result
The application for leave to adduce further evidence is granted.
The appeal is allowed. The judgment entered in the High Court is set aside.
The appellant is entitled to costs as for a standard appeal on a band A basis and usual disbursements.
Solicitors:
Carson Fox Legal, Auckland for Appellant
DT Lawyers Limited, North Harbour for Respondent
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