Lin v F Season Limited

[2024] NZHC 3481

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-000899 [2024] NZHC 3481

IN THE MATTER

of a claim for breach of contract

BETWEEN

JIANGHENG LIN

Plaintiff

AND

F SEASON LIMITED

First Defendant

WENLI ZHUANG

Second Defendant

CHAO AN

Third Defendant

LEU CUI, WENLI ZHUANG, ACS MTML

TRUSTEE LIMITED as trustees of the MTML TRUST

Fourth Defendants

MILFORD ASSET HOLDING LIMITED

Fifth Defendant

Hearing:	(On the papers)
Judgment:	20 November 2024

JUDGMENT OF VENNING J

This judgment was delivered by me on 20 November 2024 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Fortune Manning, Auckland

LIN v F SEASON LIMITED [2024] NZHC 3481 [20 November 2024]

[1]                 The plaintiff Jiangheng Lin (Mr Lin) obtained an order for specific performance against the first defendant F Season Limited (F Season) on 26 June 2024.1

[2]Associate Judge Brittain made the following order:2

(a)Within 10 working days, the first defendant shall perform its obligations under the agreement for sale and purchase of real estate between the first defendant and the plaintiff dated 10 August 2023, for the sale and purchase of 28 Drome View Place, Beach Haven, Auckland, including payment of default interest at the rate of $575.34 per day from 25 August 2023 to the date of settlement.

[3]F Season has failed to comply with that order.

[4]                 Mr Lin now applies for an order under s 350C of the Property Law Act 2007 (PLA) appointing a solicitor, Mr Jack Soh, to convey the Drome View Place property to him.

[5]                 The application was served on F Season on 8 October 2024. F Season has taken no steps to oppose it. The matter was allocated a formal proof but as F Season has taken no steps and on review of the proceedings, the Court indicated it would deal with the matter on the papers.

[6]The relevant statutory provisions are found in ss 350B and 350C of the PLA:

350B    Vesting    order    consequential    on    judgment    for    specific performance

(1)This section applies when a judgment is given for the specific performance of a contract concerning any interest in land, or for the sale or exchange of any interest in land, or generally when any judgment is given for the conveyance of any interest in land.

(2)The court may declare—

(a)that any party to the action is a trustee of any interest in the land or any part of the land; or

(b)that the interest of an unborn person is the interest of a person who would become a trustee were the unborn person to come into existence and claim—

1      Minute of Associate Judge Brittain, dated 26 June 2024.

2      At [9](a).

(i)under a party to the proceeding; or

(ii)under the will or voluntary settlement of a deceased person who was, during that person’s lifetime, a party to the contract or transaction to which the judgment relates.

(3)If the court makes an order, the court may make a vesting order relating to the rights of those persons, born and unborn, as if they were trustees.

350C    Court may  appoint person to  convey trust property

(1)In any case where a vesting order can  be  made  under section 350A or 350B, the court may instead make an order appointing a person to convey the property or any interest in the property or to release a contingent right.

(2)A conveyanceor release by a person appointed in accordance with the order has the same effect as a vesting order.

[7]                 As its heading suggests s 350B applies when judgment is given for specific performance of a contract concerning any interest in land as is the situation in the present case.

[8]                 Section 350B(2) and (3) go on to provide that the Court may declare any party to the action as a trustee to any interest in the land or make other declarations in relation to the interests of unborn persons.

[9]                 More relevantly however, s 350C confirms that instead of making an order under s 350B where the Court could make a vesting order, it may instead make an order appointing a person to convey the property or any interest in the property or to release a contingent right. It appears that Parliament’s intent was to provide a mechanism to enable the Court to facilitate the enforcement of a judgment for specific performance.

[10]              I am satisfied that ss 350B and 350C apply to the present situation and that Mr Lim’s application should in principle be granted. Mr Soh is a commercial lawyer who is capable of attending to the conveyance and will be subject to the usual responsibilities and obligations of a lawyer.

[11]              As to the practical situation of the two mortgages registered on the title to the property at Drome View Place, one is in favour of Mr Lim, the other is in favour of a third party Wenying Liu. For Mr Soh to convey the property to Mr Lin in satisfaction of the judgment the mortgages will have to be discharged from the title.

[12]              Finally, I note that no issue of any outstanding payment obligation exists between Mr Lin and F Season. The order was not conditional on any such payment as the evidence before the Court was that the transaction, including the sale of the Drome View Place, was in satisfaction of a debt owed by F Season to Mr Lin.

Result

[13]              For the above reasons the Court makes an order in accordance with s 350C of the PLA appointing Mr Soh, solicitor at Fortune Manning, to convey the property at 28 Drome View Place to Mr Lin.

[14]The applicant is also entitled to costs on a 2B basis. Order accordingly.

Venning J