Hyde Park Trustee Ltd v Zuo - [2023] NZHC 3116

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1337

[2023] NZHC 3116

BETWEEN
HYDE PARK TRUSTEE LTD

Plaintiff

AND

XUELAI ZUO

Defendant

Hearing: On the papers

Counsel:

P J K Spring for Plaintiff N King for Defendant

Judgment:

3 November 2023

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 3 November 2023 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules 2016.

………………………………
Registrar/Deputy Registrar

Solicitors: Keegan Alexander, Auckland
Sinisa Law, Auckland

HYDE PARK TRUSTEE LTD v ZUO [2023] NZHC 3116 [3 November 2023]

Introduction

[1] The plaintiff, Hyde Park Trustee Ltd (Hyde Park), has applied for summary judgment against the defendant, Xuelai Zuo, for specific performance of an agreement for sale and purchase of real estate dated 6 November 2020 (the agreement).

[2] Mr Zuo is the purchaser named in the agreement, and he nominated Hongzhen Tang to complete the purchase and take title. Mr Zuo has applied for leave to issue a third party notice to Ms Tang. Hyde Park opposes a grant of leave. The parties agreed that the issue of joinder be resolved based on memoranda from counsel, which have now been filed.

[3] The agreement became unconditional by 23 February 2023. Settlement was triggered by practical completion of construction of a building on the property. Settlement was due on 13 June 2023.

[4] Ms Tang was appointed Mr Zuo’s nominee by a deed dated 13 June 2023. Neither Mr Zuo nor Ms Tang tendered settlement on the settlement day. Consequently, Hyde Park served a settlement notice on Mr Zuo requiring settlement on or before 21 June 2023. Mr Zuo failed to comply with the settlement notice.

[5] Hyde Park filed this proceeding, including the application for summary judgment, on 22 June 2023.

Legal principles

[6] The criteria for issuing a third party notice are set out in r 4.4(1) of the High Court Rules 2016 (HCR):

4.4 Third parties

(1)A defendant may issue a third party notice if the defendant claims any or all of the following:

(a)that the defendant is entitled to a contribution or an indemnity from a person who is not a party to the proceeding (a third party):

(b)that the defendant is entitled to relief or a remedy relating to, or connected with, the subject matter of the proceeding from a third party

and the relief or remedy is substantially the same as that claimed by the plaintiff against the defendant:

(c)that a question or issue in the proceeding ought to be determined not only between the plaintiff and the defendant but also between—

(i)the plaintiff, the defendant, and the third party; or

(ii)the defendant and the third party; or

(iii)the plaintiff and the third party:

(d)that there is a question or an issue between the defendant and the third party relating to, or connected with, the subject matter of the proceeding that is substantially the same as a question or an issue…

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: [2023] NZHC 3116
Decision Date: 3 November 2023

CaseChat Overview and Summary

The case of Hyde Park Trustee Ltd v Zuo was heard by the High Court of New Zealand. Hyde Park Trustee Ltd, the plaintiff, sought summary judgment against Xuelai Zuo, the defendant, for specific performance of a real estate sale and purchase agreement. Zuo nominated Hongzhen Tang to complete the purchase and take title, and sought leave to issue a third party notice to Tang. Hyde Park opposed the grant of leave. The court was required to decide whether Zuo was entitled to join Tang as a third party under the High Court Rules 2016 and whether it was in the interest of justice to do so, given that a summary judgment application was already pending.

The court considered the criteria for issuing a third party notice under rule 4.4(1) of the High Court Rules 2016. The court noted that leave of the court is required under rule 4.4(3) when an application for summary judgment is pending. The court applied the principles applicable to third party notices, including the need to balance the interests of all parties and the need to avoid duplicity of proceedings. The court found that the criteria for issuing a third party notice were met but that leave should not be granted given the pending summary judgment application. The court found that Hyde Park had a clear case for summary judgment, and that Zuo should not be permitted to join a third party to put off meeting their obligations to Hyde Park. The court also found that the defences raised by Zuo did not necessarily involve Tang, and that Tang's absence as a party would not prejudice Zuo. The court concluded that it was premature for the court to issue a third party notice in this case, and that Hyde Park should first be given the opportunity of discharging the onus on it to establish that the defences raised by Zuo are not arguable, and that Hyde Park is entitled to summary judgment.

The application for leave to issue a third party notice was dismissed, but leave was reserved to Zuo to bring a further application if the plaintiff’s application for summary judgment is unsuccessful. The application for summary judgment was adjourned to the summary judgment list for further directions, including in respect of any application for costs.

Orders