Kerr v Lee - [2014] NZHC 340

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2013-404-003352 [2014] NZHC 340

BETWEEN LORNA JEAN KERR and GARY ALLAN KERR
Plaintiffs

AND SEUNG-HOON LEE and KYUNG-HEE LEE NOH
Defendants

Hearing: 23 October 2013

Appearances: R B Stewart QC for plaintiffs
C C Mansell for defendants

Judgment: 28 February 2014

JUDGMENT OF ASSOCIATE JUDGE ABBOTT

This judgment was delivered by me on 28 February 2014 at 5.15pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
Kevin McDonald & Associates
Martelli McKegg

KERR and KERR v LEE and NOH [2014] NZHC 340 [28 February 2014]

[1] This dispute arises out of an agreement for sale and purchase of a residential property. At material times the plaintiffs were the owners of the property. They entered into an agreement to sell it to the defendants.

[2] Under the agreement the defendant purchasers were required to pay a deposit of $100,000 when the agreement became unconditional. They have not paid it. The agreement has come to an end. The plaintiff vendors now sue for the deposit. The defendants’ liability to pay it depends on whether they bought the agreement to an end because a condition (sale of their existing property) could not be met, or whether the plaintiffs subsequently cancelled it after the defendants failed to comply with a settlement notice.

[3] The critical issue, therefore, is whether the agreement became unconditional. This in turn depends on whether the defendants did all that was reasonably necessary to enable the condition to be fulfilled.

[4] The plaintiffs have applied for summary judgment both for the amount of the deposit and for contractual interest from settlement date. They claim that they have a clear case for saying that the defendants failed to take all necessary steps to enable a sale of their property to occur.

[5] The defendants oppose summary judgment. They say that they have a fairly arguable defence that they took all steps required of them.

[6] For the reasons I will now give, I find that the defendants do not have an arguable defence, save in respect of the claim for interest.

Background

[7] The following background facts are not in dispute.

[8] At all material times the plaintiffs owned a five hectare property in Chamberlain Road, Massey. In early 2007 they listed the property for sale with the real estate agents Barfoot & Thompson.

[9] The defendants owned a property at 22 Northboro Road, Takapuna, (the Takapuna property) but were looking to move to a lifestyle property in the Massey area. They saw an advertisement for the plaintiffs’ property, and contacted the agent who was handling the listing, a Mr Chang. After discussions with Mr Chang as to what they might obtain for the Takapuna property, and negotiations on price with the plaintiffs, they entered into an agreement on 20 April 2007 to buy the plaintiffs’ property for $1,800.000.

[10] The agreement is subject to two conditions (both inserted for their benefit as purchasers), added to the…

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 Kerr v Lee

Details

AGLC: Kerr v Lee [2014] NZHC 340
Case: [2014] NZHC 340
Decision Date: 28 February 2014

CaseChat Overview and Summary

The case of Kerr v Lee is an action for the recovery of a deposit under a contract for the sale of residential property. The plaintiffs are the owners of a property in Massey that they agreed to sell to the defendants. The contract was conditional on the defendants selling their existing property in Takapuna by a certain date, and required them to take all reasonably necessary steps to enable the condition to be fulfilled. The defendants did not sell their property by the due date, and the plaintiffs terminated the contract and sued for the deposit. The defendants opposed the claim, contending that they had taken all reasonably necessary steps to sell their property. The plaintiffs applied for summary judgment as to the deposit and contractual interest from the date of settlement. The court found that the defendants did not have an arguable defence to the claim for the deposit, but that there was a slight argument available in respect of the claim for contractual interest. The court therefore entered summary judgment for the plaintiffs as to the deposit, with interest under the Judicature Act 1908 from the date of issue of the proceeding. The plaintiffs were given time to decide whether to pursue the claim for contractual interest, and if so, the defendants were to file a statement of defence. The plaintiffs were also given time to apply for costs on a basis other than standard costs, but if they did not, they were to enter judgment for costs on a scale 2B basis together with disbursements as fixed by the Registrar.

Orders