Lee v Gao - [2012] NZCA 57

IN THE COURT OF APPEAL OF NEW ZEALAND

CA730/2011
[2012] NZCA 57

BETWEEN YOON LEE
Applicant

AND ZHI HONG GAO AND LIN GE
First Respondents

AND JOHN CARTER, BRENT O'CALLAGHAN AND TIMOTHY UPTON SLACK
Second Respondents

Hearing: 7 February 2012

Court: Glazebrook, Wild and White JJ

Counsel: Applicant in person
P J McPherson for First Respondents
A C Challis and K Robinson for Second Respondents

Judgment: 2 March 2012 at 3.30 pm

JUDGMENT OF THE COURT

AThe application for leave to bring a second appeal to this Court is dismissed.
BThe applicant is to pay the costs of each of the first and second respondents for a standard application on a band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT
(Given by Wild J)

This application

Mr Lee applies, under s 67 of the Judicature Act 1908, for leave to appeal a judgment of Peters J delivered in the High Court at Auckland on 19 May 2011.[1] Leave is required because the judgment of Peters J was on appeal from a decision of Judge Gittos given in the Auckland District Court on 14 May 2010.[2]
[1] Lee v Gao HC Auckland CIV-2010-404-3599, 19 May 2011.
[2] Gao v Lee DC Auckland CIV-2007-004-2591, 14 May 2010.
Mr Lee is a solicitor. He acted for the first respondents, Ms Gao and Mr Ge (we will refer simply to Ms Gao), upon their purchase of a residential section in Auckland from Pro Rata Investments (Pro Rata). The second respondents are the partners of the firm of solicitors which acted for Pro Rata in the sale transaction. We will call them Carters.

Factual background

This litigation concerns agreements for the sale and purchase of Lot 8 in a subdivision at Stanmore Bay in Auckland. The developer, Carrera Developments Ltd and R & D Enterprises Ltd, sold three lots to Pro Rata, including Lot 8 for $267,500. By agreement dated 16 July 2005, Pro Rata on-sold Lot 8 to the Ms Gao for $275,000 with a 10 per cent deposit payable on signing, a further 50 per cent on 10 August 2005, and the balance upon settlement on 10 October 2005. The agreement was in the form approved by the Real Estate Institute of New Zealand and Auckland District Law Society (7^th edition (2)). It contained a handwritten term:
Conditional upon the Vendor’s solicitor approving the form of the contract within 3 working days.
Ms Gao’s evidence was that this clause was inserted by the land agent after he agreed to her suggestion “shouldn’t we get this approved by a lawyer?”
Having signed the agreement Ms Gao sent it to Mr Lee and instructed him to act for them on the purchase. Mr Lee had acted for Ms Gao on previous property transactions.
When Pro Rata failed to settle its purchase of Lot 8 from Carrera, Carrera cancelled the agreement and later sold Lot 8 to a third party. The two deposits (totalling $165,000) that Ms Gao had paid to Pro Rata…

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 Lee v Gao

Details

AGLC: Lee v Gao [2012] NZCA 57
Case: [2012] NZCA 57
Decision Date: 2 March 2012

CaseChat Overview and Summary

In Lee v Gao, Yoon Lee, a solicitor, applied for leave to bring a second appeal to the Court of Appeal of New Zealand against the decision of the High Court. Lee had acted for Ms Zhi Hong Gao in the purchase of a residential section in Auckland from Pro Rata Investments. The property transaction resulted in the loss of two deposits paid by Ms Gao, as Pro Rata could not settle its purchase of the property and subsequently went into liquidation. Ms Gao sued Lee for damages for negligence, which was awarded to her in the Auckland District Court. Lee appealed against this decision, but the appeal was dismissed by the High Court, which substituted a lower judgment in favour of Ms Gao. Lee then sought leave to bring a second appeal against the High Court's judgment.

The Court of Appeal considered Lee's arguments that the High Court erred in upholding the District Court's finding that no oral undertaking was given by Carters (the second respondents), and that the new evidence admitted by the High Court was relevant to causes of action independent of the alleged undertaking. The Court of Appeal found that Lee's arguments did not meet the established test for a second appeal and that the High Court's damages approach was orthodox. The Court of Appeal concluded that the case should go no further and declined Lee's application for leave to bring a second appeal.

The final orders of the Court of Appeal were that Lee's application for leave to bring a second appeal was dismissed and that Lee was to pay the costs of each of the first and second respondents for a standard application on a band A basis with usual disbursements.

Orders