GRP Holdings Ltd v VP Nominees Ltd - [2021] NZHC 545

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1403

[2021] NZHC 545

IN THE MATTER OF an application to sustain Caveat 11816775.1 against Record of Title NZ12C/168

BETWEEN

GRP HOLDINGS LIMITED

Applicant

AND

IN THE MATTER OF BETWEEN

AND

VP NOMINEES LIMITED

Respondent

CIV-2020-404-1994

an application to sustain Caveat 11816775.1 lodged against Record of Title NZ12C/168

GRP MANAGEMENT LIMITED
Applicant

VP NOMINEES LIMITED

Respondent

Hearing: 23 October 2020

Appearances:

G Blanchard QC, C Jiang and GSA Morrison for the Applicants MD O’Brien QC and KL Chiu for the Respondent

Judgment:

17 March 2021

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 17 March 2021 at 4.30pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Glaister Ennor, Auckland
Forest Harrison Lawyers, Auckland

GRP HOLDINGS LIMITED v VP NOMINEES LIMITED [2021] NZHC 545 [17 March 2021]

Introduction

[1] GRP Holdings Limited (“GRP Holdings”), applies for an order to sustain a caveat over 14 Sinton Road, Hobsonville (“Property”). The Property is currently owned by the respondent, VP Nominees Limited (“VP Nominees”).

[2] GRP Management Ltd (“GRP Management”) “and/or nominee” and VP Nominees entered into a sale and purchase agreement on 10 October 2018 (“Agreement”). The purchase price agreed following an early variation, was
$8,750,000, $1,500,000 of which was paid as a deposit, and with a settlement date of 31 March 2020.

[3] GRP Holdings was nominated as the purchaser by Deed of Nomination dated 19 December 2018.

[4] Settlement did not take place and VP Nominees purported to cancel the Agreement on 14 May 2020.

[5] GRP Holdings says VP Nominees wrongfully and invalidly cancelled because the Agreement included a right to a pre-settlement inspection which was not honoured, and because the main dwelling on the Property was found to be contaminated with methamphetamine prior to settlement and possession by GRP Holdings.

[6] If the Agreement has been wrongfully or invalidly cancelled, then GRP Holdings maintains a caveatable interest as nominated purchaser. If the cancellation was lawful, however, then GRP Holdings has no such interest.

[7] The issue I need to resolve is whether GRP Holdings has a reasonably arguable case that the cancellation by VP Nominees was wrongful or invalid or whether VP Nominees has validly cancelled the Agreement ending GRP Holdings’ interest as purchaser.

[8] GRP Holdings and GRP Management have filed substantive proceedings against VP Nominees seeking specific performance of the Agreement.

[9] VP Nominees accepts that there are several disputed factual issues but submits that the case turns on legal issues, whether the claimed right of pre-settlement inspection and the alleged contamination of the property, displaced GRP Management’s obligation to settle or VP Nominees’ right of cancellation.

[10] VP Nominees submits that these legal questions can be determined in these caveat proceedings finally determining the parties’ rights.

[11] A significant volume of affidavit evidence has been filed from both of the key individuals associated with the parties, Ms Liu (of GRP…

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: [2021] NZHC 545
Decision Date: 17 March 2021

CaseChat Overview and Summary

GRP Holdings Limited and GRP Management Limited apply for an order to sustain a caveat over 14 Sinton Road, Hobsonville. The property is currently owned by VP Nominees Limited. GRP Holdings and GRP Management are the nominees under a sale and purchase agreement for the property. The settlement date for the sale and purchase agreement was 31 March 2020. VP Nominees issued a settlement notice on 21 April 2020 and cancelled the agreement on 14 May 2020. The issue for determination in these caveat proceedings is whether GRP Holdings has a reasonably arguable claim that VP Nominees wrongfully or invalidly cancelled the sale and purchase agreement. If the cancellation by VP Nominees was wrongful or invalid, then GRP Holdings maintains a caveatable interest as the nominated purchaser. If the cancellation was lawful, however, GRP Holdings has no such interest. GRP Holdings submits that the cancellation was wrongful or invalid because VP Nominees was not ready, willing and able to settle as it was in breach of the agreed pre-settlement inspection term, breached clauses 5.2(2) and 8 of the Agreement, or breached ss 9 and 14 of the Fair Trading Act 1986 and s 35 of the Contract and Commercial Law Act 2017. The court found that GRP Holdings has reasonably arguable claims on all three grounds. The application to sustain the caveat is granted.

Orders