Lam v Mo

[2021] NZHC 3200

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2013-485-001736

[2021] NZHC 3200

BETWEEN

MAN FUNG LAM, YUET MING BETTY WONG and MORAL DRAGON LIMITED
Plaintiffs

AND

CHIU CHEUNG MO and LILY YUET HA WONG

First Defendants

AND

SUNLINK DEVELOPMENTS LIMITED

Second Defendants

AND

PLIMMERTON HEIGHTS CONSTRUCTION LIMITED

Third Defendants

AND

STEVEN WEE HONG LEE

Fourth Defendant

Hearing:	On the papers
Judgment:	26 November 2021

JUDGMENT OF NATION J

[1]                 This judgment records the orders the Court must make consequent to judgments of 16 May 2017, 13 February 2018 and 6 July 2021, and the terms on which a property controlled by the first defendants is to be sold.

[2]                 On 13 August 2021, counsel for the Lams and the fourth defendant filed a joint memorandum setting out the precise terms of proposed orders.

LAM v MO [2021] NZHC 3200 [26 November 2021]

[3]                 On 19 October 2021, counsel for the first, second and third defendants filed a response in which they agreed with the judgments sum calculations and the proposed terms of the sale of the property at 1 Mo Street. Counsel anticipate that changes may need to be made to the directions in relation to the sale of the property and request an order be made allowing those directions to be made by agreement between the parties, should the need arise. Given the protracted nature of this litigation, in my view, it is more appropriate that an order be made reserving leave for the parties to apply to the Court to amend directions in relation to the sale of 1 Mo Street.

The orders

[4]                 Pursuant to the judgments of this Court of 16 May 2017, 13 February 2018 and 6 July 2021, the abovenamed first defendants are jointly and severally to pay to the abovenamed plaintiffs the sum of $315,329, comprising:

Paragraph reference in judgment dated 6 July 2021	Amount
[80] 35% profit determination	$57,475
[80] Interest on $57,475 at 5% from 20 June 2013 to 6 July 2021	$23,115
[81] 35% net sale proceeds of 14 Mo Street	$96,856
[81] Interest on $96,856 at 5% from 15 February 2019 to 6 July 2021	$11,543
[83] Costs and disbursements for period up to 16 May 2017	$107,158
[85] Costs for the period 9 November 2018 to 6 July 2021	$19,182
TOTAL	$315,329

[5]The property at 1 Mo Street is to be sold on the following terms:

1.           The land at 1 Mo Street, Camborne, Porirua (the Land), is to be sold. The parties will implement the following within seven days of the date of judgment:

(a) The appointment of a Real Estate Agent to market the Land and

conduct the sale

If the parties are unable to agree to a single agent being appointed, then each of the parties can appoint a Real Estate Agent to jointly undertake the sale of the Land.

(b) The setting of a market price for the sale of the Land

If the parties are unable to agree to the market price, then each party is to appoint a registered valuer within three days. The valuers so appointed shall consult and agree to a market price within three days. If the valuers are unable to agree to the market price range, then it shall be decided by the President of the New Zealand Institute of Valuers.

2.           The parties are to take recommendation from the appointed Sales Agent(s), as to the best method of sale.

3.           Acceptance of any offer is to be agreed to by both parties. The parties shall act in good faith to expedite the sale and to consider any reasonable offers promptly. If the parties are unable to agree, then the procedure set out in para 1(b) shall apply to the decision to accept an offer.

4.           The defendants are to promptly provide all information concerning the Land and the subdivision to allow the Agent(s) to effectively market the sale.

5.           On appointing the Sales Agent(s), the parties are to agree on the information to be disclosed to prospective purchasers.

6.           The defendants are to sign all documentation required to allow the sale to proceed.

7.           The proceeds of sale (after payment of agents commission and legal costs for the conveyancing and the costs of any process under paragraph 1(b)) shall be paid to the trust account of Morrison Kent.

[6]                 Following the sale of 1 Mo Street, 35 per cent of the net proceeds of sale are to be held to the credit of the plaintiffs but, from their share of the proceeds of sale, payment is to be made directly to:

(a)        the fourth defendant of:

i.$52,954, being costs ordered on 13 February 2018 by Churchman J;1

ii.$8,977, being interest on those costs at five per cent from 13 February 2018 to 6 July 2021; and

iii.$1838, being scale costs on a 2B basis for the filing of various post judgment memoranda.

(b)       the first defendants of $321,000, as referred to in para [218] of the Court’s judgment of 16 May 20172 and para [24] of the Court’s judgment of 6 July 2021;3 and

(c)        the plaintiffs the balance then remaining.

[7]                 The remaining 65 per cent of the net proceeds of sale from 1 Mo Street is to be paid to the first defendants.

[8]                 Leave is reserved to the parties to seek any further orders that may be required to complete the sale of the property at 1 Mo Street and the implementation of these orders.

Solicitors:

R J B Fowler, Barrister, Wellington

Paul Cheung & Co., Solicitors, Wellington Morrison Kent, Lawyers, Wellington

Fee Langstone, Auckland.

1      Lam v Wong [2018] NZHC 116.

2      Lam v Mo [2017] NZHC 997.

3      Lam v Mo [2021] NZHC 1663.