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Kumar v Nandan

Kumar v Nandan

Case [2016] NZHC 935 10 May 2016

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2886 [2016] NZHC 935

BETWEEN
PRIBIKA SHALEEN KUMAR

Plaintiff

AND

RONEEL NANDAN AND ARCHANA ABHIYASNI

Defendants

PAKURANGA & HOWICK REALTY LIMITED

First Third Party

SAMUEL WONG Second Third Party

Hearing: 9 March 2016

Counsel:

B Gustafson for Plaintiff
C J R Baird and A Shinkarenko for Defendants

Judgment:

10 May 2016

JUDGMENT OF WHATA J

This judgment was delivered by me on 10 May 2016 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:
Kennedys, Auckland
Aaron Kashyap, Auckland
Quinn Law, Auckland

KUMAR v NANDAN & ORS [2016] NZHC 935 [10 May 2016]

[1] An agreement to sell a house was signed by the parties in October 2013. The deposit for the house was not paid until February 2016, after proceedings for specific performance or damages were launched by the purchasers. The vendors seek summary judgment and/or strike-out of the claim given the failure to pay the deposit on time (and for breach of the LIM condition).

[2] It might be thought that the failure to pay the deposit on time, or even at all, prior to the commencement of proceedings, when time is of the essence, precludes a claim for specific performance and damages. But as with many cases of this kind, the answer is not always so simple.1 The vendor purported to cancel the agreement prior to the settlement date, alleging misrepresentation and mistake. No mention was made of the failure to pay the deposit at the time. A caveat was lodged to protect the purchaser’s interests and the purchaser’s solicitor advised the listing agent (albeit well after the date for payment) that the deposit was not paid because of the vendor’s
purported cancellation. Complicating matters, the purchaser’s subsequent attempts at settlement did not include the deposit sum, it appears, on the assumption it had already been paid. The conduct of the parties therefore will not go down in the history books as an exemplar of conveyancing practice.

[3] The central issue for me to resolve is whether, against this complicated backdrop, the vendor is entitled to summary judgment for non-payment of the deposit and/or whether the purchaser’s claim should be struck out.

Facts

[4] The following narrative is largely borrowed from Mr Baird’s summary which for the most part was not disputed.

1 Noble Investments Ltd v Keenan [2006] NZAR 594 (CA); Ingram v Patcroft Properties [2011] NZSC 49, [2011] 3 NZLR 433; Hirst v Vousden [2004] UKPC 24, (2004) 6 NZCPR 135; Kumar v Station Properties Ltd (in liq and in rec) [2015] NZSC 34, [2016] 1 NZLR 99.

The agreement

[5] On 20 October 2013 the parties signed an Agreement for Sale and Purchase of the property (the Agreement). The Agreement records a purchase price of
$380,000 with a deposit of $5,000:

payable to Pakuranga and Howick Realty Trust Account on unconditional of the agreement

[6] The recorded price was, at that…

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 Kumar v Nandan

Details

AGLC: Kumar v Nandan [2016] NZHC 935
Case: [2016] NZHC 935
Decision Date: 10 May 2016

CaseChat Overview and Summary

Kumar v Nandan was a case before the High Court of New Zealand, Auckland Registry. The plaintiff, Pribika Shaleen Kumar, sued the defendants, Roneel Nandan and Archana Abhiyashni, for specific performance and damages for the sale and purchase of a property. The defendants sought summary judgment and/or strike-out of the claim. The central issue was whether the vendor is entitled to summary judgment for non-payment of the deposit and/or whether the purchaser’s claim should be struck out. The court found that the deposit condition was a fundamental or essential term of the sale and purchase agreement, breach of which triggered the right to cancel the contract. However, the court also found that the parties intended to remain bound by the agreement after the expiry of the time for payment of the deposit, and the vendor may cancel the contract for non-payment of the deposit in accordance with the method stipulated in the clause. The court declined the application for strike out and/or summary judgment, but required the plaintiff to amend her statement of claim to specifically plead, among other things, that the deposit was not paid because of the defendants’ notice of cancellation. The court also directed that the question of costs on the defendant’s application for summary judgment/strike out be reserved for determination at the conclusion of the proceeding.

Orders