Harsono v Fang - [2023] NZHC 3717

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000658

[2023] NZHC 3717

BETWEEN WILLIAM HARSONO and YUN YUEH CHENG
Plaintiffs

AND

LIN FANG

Defendant

Hearing: 9 November 2023

Appearances:

M Keall for the Plaintiffs

L Huang / B Hayes for the Defendant

Judgment:

15 December 2023

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 15 December 2023 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Jenny Wang & Associates, Auckland Tompkins Wake, Auckland

M Keall, Auckland

HARSONO v FANG [2023] NZHC 3717 [15 December 2023]

Introduction

[1] The plaintiffs, William Harsono and Yun Yueh Cheng (the Harsonos) claim against the defendant, Lin Fang (Ms Fang) for an order of specific performance of an agreement for sale and purchase of a property at Dunkirk Road, Panmure, by paying the outstanding purchase price of $3,562,500.00 and default interest from the settlement date of 23 January 2023.1 The Harsonos apply for orders by summary judgment.

[2] Ms Fang’s defence is that the Harsonos agreed to defer settlement to 23 January 2024 and waive default interest. Alternatively, that Mr Harsono made representations to this effect which she detrimentally relied on, that the Harsonos are estopped from denying. Or, if these defences are not available, that specific performance is not an appropriate remedy.

[3]The issues are:

(a)Does Ms Fang have an arguable defence that she and the Harsonos agreed to vary the settlement date?

(b)If not, does Ms Fang have an arguable defence that Mr Harsono made representations to that effect, that the Harsonos are estopped from denying?

(c)If not, is specific performance the appropriate remedy?

Factual background

[4]With one exception, the chronology of facts is agreed up until 26 January 2023.

[5] On 6 October 2021, the Harsonos’ property at Dunkirk Road was sold to Ms Fang at a competitive auction. The agreement was recorded on a standard ADLS Particulars and Conditions for Sale of Real Estate by Auction (the Agreement).2

1 At the rate of 15 per cent per annum, a daily rate of $1,464.04.
2 ADLS Particulars and Conditions for Sale of Real Estate by Auction (5th ed, 2020).

[6] The purchase price was $3,750,000. The settlement date was 30 June 2022. A deposit of 10 per cent of the purchase price, $375,000, was agreed, payable as follows:

(a)$50,000 payable on auction day;

(b)the balance of five per cent payable by 30 November 2021; and

(c)the balance of 10 per cent payable by 31 March 2022.

[7] Interest payable on late settlement was 15 per cent.3 Clause 12.4(1)(a) of the Agreement provided that in the event the purchaser fails to comply with a settlement notice, the vendor is entitled to enforce the contract by way of specific performance.

[8] Ms Fang paid $187,500 in deduction of the deposit but did not pay the remaining $187,500 by the agreed date of 31 March 2022.

[9]…

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.

Continue reading Harsono v Fang

Details

AGLC: Harsono v Fang [2023] NZHC 3717
Case: [2023] NZHC 3717
Decision Date: 15 December 2023

CaseChat Overview and Summary

The plaintiffs, William Harsono and Yun Yueh Cheng, seek an order of specific performance against the defendant, Lin Fang, to compel her to complete the purchase of their property at Dunkirk Road, Panmure, by paying the outstanding purchase price and default interest. The defendant argues that the settlement date was varied to 23 January 2024, and that the plaintiffs are estopped from denying this variation. The court must decide whether the defendant has a valid defence to the claim for specific performance.

The court considered the arguments of both parties regarding the alleged variation of the settlement date. The defendant argued that she and the plaintiff had agreed to defer the settlement date to 23 January 2024, and that this agreement was beneficial to both parties. The plaintiffs disputed this, stating that no such agreement was reached. The court found that the defendant had an arguable defence that such an agreement was reached, based on the final statements made by the plaintiff during a two-hour WeChat discussion on 26 January 2023. The court found that the defendant had laid a proper foundation for her defence, and that the alleged variation was arguably beneficial to the plaintiffs, making it enforceable at law.

The court also considered the defendant’s alternative defence of estoppel by representation. The court found that the defendant had not laid a proper foundation for this defence, as she had not demonstrated that she relied on the alleged representation to her detriment. The court concluded that the defendant had an arguable defence that the settlement date was varied, and that this finding was sufficient to dismiss the plaintiffs' application for summary judgment.

The application for summary judgment is dismissed, and costs are reserved.

Orders