Golden Plaza Limited v Jung 28 Limited

[2025] NZHC 762

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2203

[2025] NZHC 762

BETWEEN

GOLDEN PLAZA LIMITED

Plaintiff

AND

JUNG 28 LIMITED

Defendant

Hearing:	24 March 2025
Appearances:	Sean McAnally and E Sun for the Plaintiff Defendant is self-represented
Judgment:	2 April 2025

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application for summary judgment]

This judgment was delivered by me on 2 April 2025 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

………………………….

Registrar/Deputy Registrar

Solicitors:

Elite Legal (Elaine Sun), Epsom, Auckland, for the Plaintiff

Copy for:

Sean McAnally, Barrister, Auckland, for the Plaintiff Jung 28 Limited, the Defendant

GOLDEN PLAZA LIMITED v JUNG 28 LIMITED [2025] NZHC 762

The application

[1]        Golden Plaza Limited (Golden Plaza) applies for summary judgment against Jung 28 Limited (Jung 28).

[2]        Golden Plaza is seeking damages following Jung 28 defaulting on settlement of an agreement for the sale and purchase of subdivisible land in Albany, Auckland.

Background

[3]        The land in question is undeveloped land, occupying a subdivisible site in Albany, Auckland. The sale and purchase agreement was signed on 21 June 2021 (the Sale Agreement) and initially provided for a due diligence condition and purchase price of $9.68m. Settlement was scheduled for 30 November 2022.

[4]        The Sale Agreement became unconditional on or about 18 June 2021 and Jung 28 paid a deposit of $968,000. The agent was paid its initial commission of $250,000.

[5]        The Sale Agreement was varied on 28 October 2022 such that the settlement date was extended to 30 June 2023 and the purchase price was increased to

$10,648,000. Two further deposit payments of $100,000 each were to be paid by Jung 28 on 22 November 2022 and 22 December 2022 respectively.

[6]        Jung 28 could not pay the additional deposits as agreed, and a further variation to the Sale Agreement was agreed whereby the additional deposits were reduced to a total of $100,000 to be paid by instalments on 22 December 2022 and in February 2023. Those additional deposits were paid, bringing the deposit paid by Jung 28 to a total of $1,068,000, from which a further real estate commission of $26,178.60 was deducted.

[7]        Jung 28 was unable to settle on 30 June 2023, and a further variation of the Sale Agreement was agreed whereby the settlement date was extended to 20 July 2023.

[8]        Jung 28 did not settle on 20 July 2023. A further variation to the Sale Agreement was agreed on 24 January 2024:

(a)Jung 28 would pay a further deposit of $200,000 by 10 March 2024;

(b)Jung 28 would pay a further deposit of $800,000 by 30 April 2024; and

(c)the new settlement date would be 30 May 2025 unless either of the two further deposits was not paid, in which case an earlier settlement date would be triggered, namely five working days after the due date of the missed deposit payment.

[9]        The deposit due on 10 March 2024 was not paid and accordingly the settlement date became 15 March 2024. Golden Plaza provided its settlement statement  to  Jung 28, but Jung 28 did not settle on 15 March 2024.

[10]      Golden Plaza issued a settlement notice on 19 March 2024 which expired unremedied on 8 April 2024. Consequently, Golden Plaza cancelled the Sale Agreement, and forfeited the deposit paid (by that point totalling $1,068,000).

[11]      Golden Plaza has elected to retain the land under the terms of the Sale Agreement and claims against Jung 28 for its loss due to Jung 28’s failure to settle under the Sale Agreement.

Legal principles

[12]Rule 12.2(1) of the High Court Rules 2016 provides:

12.2 Judgment when there is no defence or when no cause of action can succeed.

(1)The court may give judgment against a defendant if the plaintiff  satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.

[13]      The relevant principles governing a summary judgment application are well established:1

1      Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26] (citations omitted).

The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart. The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable: Eng Mee Yong v Letchumanan. In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel.

[14]The wording of r 12.2 “may give judgment” indicates a residual discretion.

Having regard to the various authorities, the position appears to be as follows:2

(a)The discretion implied by the use of the word “may” is to be restrictively applied. In a great majority of cases, once the court is satisfied the defendant has no defence, there is no room for the exercise of discretion.

(b)The residual discretion may be invoked to avoid oppression or injustice to the defendant where:

(i)The proceeding involves the actions or possible liability of a third party which is not before the court;

(ii)The proceedings are such that the opportunity should be given to allow discovery or other interlocutory applications to be concluded;

(iii)The circumstances of the case disclose very unusual features, the presence of which leads the court to conclude that the entry of summary judgment would be oppressive or unjust; or

(iv)The combination of complex issues of fact and law justify the dismissal of the application for summary judgment, either as a matter of discretion or because the court cannot be satisfied that the defendant has no defence.

(c)Even where the court is not satisfied that a defence has been made out, in exceptional circumstances the application may be adjourned to allow for other processes to be followed.

2      Andrew Beck and others (eds) McGechan on Procedure (online ed, Thomson Reuters) at [HR12.2.11].

Golden Plaza’s position

[15]      Mr McAnally, for Golden Plaza, submits its loss is $3,806,178.60 which is calculated as the difference between the value of the property at the date the Sale Agreement was breached and the purchase price under the Sale Agreement less the deposit forfeited. He submits $4,598,000 is the difference between the market value of the property and the purchase price that Jung 28 agreed to buy it for, less the net deposit paid and forfeited (after deduction of real estate commissions totalling

$276,178.60 (including GST)).

[16]      The starting point, Mr McAnally submits, is that the innocent party to a breach of contract is entitled to damages that put it in the position it would have been had the contract been performed.3 He submits the assessment of damages is usually made at date of breach and, in this particular context, the normal measure of damages is the contract price less the market value of the land at the date of breach, plus expenses incurred in preparing to complete, less anything received from the purchaser under the agreement. He refers to Sullivan v Darkin.4

Jung 28’s position

[17]      Jung 28 did not file submissions and did not appear at the hearing. Jung 28 did file a notice of opposition dated 15 November 2024. The grounds of opposition set out in that notice were, in summary:

(a)that Golden Plaza had suffered no actual damage;

(b)Golden Plaza’s claim is based on the valuation report which can only be the opinion of one valuer;

(c)the property market fluctuates all the time;

(d)Golden Plaza has forfeited the deposit amount of $1,068,000 paid by Jung 28.

3      Livingstone v Raywards Coal Co (1880) 5 App Cas 25, Robinson v Harman (1848) 1 Ex 850, 154 ER 363.

4      Sullivan v Darkin [1986] 2 NZLR 214 at 220 (CA).

[18]      In addition to the notice of opposition Ms Jung Sook Kim, the sole director and shareholder of Jung 28 (Ms Jung), in her affidavit sworn on 14 November 2024 made the following assertions:

(a)“the deposit was paid without my consent and the real estate agent never met with me or explained the contract details to me”;

(b)“when the amended contract was prepared, I did meet with the real estate agent, but no explanation was provided regarding the changes”;

(c)“my staff made a bank transfer request through my company account and asked me to approve it. I approved it without checking the payment”.

[19]Mr McAnally deals with these issues in his submissions as follows:

(a)As Ms Jung admits she has no business experience and Jung 28 was incorporated with her “husband’s guidance” and he works as a “business advisor” for Jung 28, it can be inferred that the decision to enter into the Sale Agreement was in fact Ms Jung’s husband and she relied upon his business experience;

(b)the evidence that the deposit was made without her consent and that she simply approved the payment without checking it does not affect the fact that the payment was made by Jung 28;

(c)the only real estate agent Golden Plaza is aware of is its own agent  (to whom it paid commissions) and if Ms Jung is referring to that agent he had no duty to advise her. If she is referring to her own agent, then that is a matter between her and that agent.

[20]      Mr McAnally submits therefore there is no viable opposition in terms of liability of Jung 28 for breach of the Sale Agreement and the only question for the Court to consider is one of quantum.

Quantum

[21]      Mr McAnally refers to the valuation by Ms Beckett of CBRE Limited attached to her affidavit affirmed on 15 August 2024, which values the property at 8 April 2024 at $6,050,000. He submits that the purported valuation attached to Ms Jung’s affidavit has no standing as a registered valuation and is unclear as to the content, and accordingly the only evidence of the  value  of  the  property  before  the  Court  is Ms Beckett’s valuation as at 8 April 2024. He submits this should be the valuation used for the purposes of calculating Golden Plaza’s loss.

Result

[22]      In the absence of submissions and an appearance from Jung 28, there is no defence apparent from the notice of opposition or Ms Jung’s affidavit to the liability of Jung 28 for breach of the Sale Agreement. Accordingly, the only issue for the Court is to be satisfied that the calculation of quantum of its loss by Golden Plaza is reasonable.

[23]      In the absence of any contrary evidence from Jung 28, the valuation carried out by Ms Beckett is a valuation from a reputable firm and, in my view, is the best evidence available of the value of the property at the date of the breach and it is reasonable to use this as a basis for the calculation of Golden Plaza’s loss.

Orders

[24]I make the following orders:

(a)Judgment is to be entered in favour of Golden Plaza for damages for the sum of $3,806,178.60;

(b)interest is awarded to Golden Plaza, pursuant to s 9 of the Interest on Money Claims Act 2016, on the amount of $3,806,178.60 from 9 April 2024 until the date when the judgment amount is paid;

(c)as the successful party, Golden Plaza is entitled to costs on a 2B basis, together with disbursements.

…………………………….. Associate Judge Taylor