Ling v Northwest Developments Limited - [2019] NZCA 630

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA247/2019
[2019] NZCA 630

BETWEEN	KE LING Appellant
AND	NORTHWEST DEVELOPMENTS LIMITED Respondent

Hearing:	12 September 2019
Court:	Courtney, Duffy and Wylie JJ
Counsel:	AJB Holmes for Appellant M J Fisher and T J Yoon for Respondent
Judgment:	10 December 2019 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Courtney J)

Introduction

This is an appeal from a grant of specific performance by Associate Judge Bell in favour of the respondent, Northwest Developments Ltd.[1]
[1]Northwest Developments Ltd v Ling [2019] NZHC 1023 [High Court judgment].
Northwest was the vendor and Ke Ling the purchaser under a sale and purchase agreement dated 24 May 2016. The subject property was part of a proposed subdivision being undertaken by Northwest. Title was not expected to issue for some time. For the protection of both vendor and purchaser in the event of title not issuing within the expected time, cl 24.2 (commonly known as a sunset clause) provided that:
24.2Should title have not issued by 31 March 2018 then either party may cancel the agreement by giving written notice to the other party notifying them that the agreement is now terminated. Provided however that in the event that the vendor has submitted the survey plan for approval to LINZ the vendor may at its sole discretion, prior to 31 March 2018, notify the purchaser that the time for satisfaction of this condition has been extended for a further 6 months.
On 16 February 2018, Northwest exercised its right to extend time under the proviso to cl 24.2. By then it already had approval from the Auckland Council for subdivision in accordance with its survey plan, LT Plan 509469, and had approval as to survey from Land Information New Zealand (LINZ). However, Northwest also required the consent of its neighbours to the survey plan. Difficulties in obtaining that consent led to Northwest submitting a revised survey plan, LT Plan 522391. Title ultimately issued on the basis of the revised survey plan.
Mr Ling refused to settle the purchase, claiming that Northwest’s extension of time was invalid. He argued that “the survey plan” referred to in the proviso had to be the same plan on which title ultimately issued.
Northwest applied successfully for summary judgment and obtained an order for specific performance of the agreement.[2] In this appeal Mr Ling asserts error by the Associate Judge in (1) holding that the time for assessing the validity of the extension was when notice was given under the sunset clause and (2) wrongly interpreting the phrase “the survey plan” in cl 24.2.

The statutory context

[2]At [47].

At the relevant time the subdivision of land was controlled by the Resource Management Act 1991 (RMA).[3] Section 11 relevantly provided that:
11 Restrictions on subdivision…

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 Ling v Northwest Developments Limited

Details

AGLC: Ling v Northwest Developments Limited [2019] NZCA 630
Case: [2019] NZCA 630
Decision Date: 10 December 2019 at 10.30 am

CaseChat Overview and Summary

Ke Ling brought an appeal against a decision of the High Court which had ordered specific performance of a sale and purchase agreement with Northwest Developments Ltd. Northwest had been in the process of subdividing a property in Auckland and had entered into an agreement to sell a lot in the subdivision to Mr Ling. The agreement contained a sunset clause which provided that if title had not issued by 31 March 2018, either party could terminate the agreement by giving written notice. However, the vendor had the right to extend the time for title to issue by a further six months if it had submitted the survey plan for approval to Land Information New Zealand (LINZ) before the deadline. When the deadline passed, Northwest gave notice of its intention to exercise the extension and Mr Ling did not object. However, Northwest had not yet obtained consent from its neighbours to deposit the survey plan, and so it submitted a revised plan to LINZ. Title ultimately issued on the basis of the revised plan and Mr Ling refused to settle. He argued that Northwest's extension was invalid because the revised plan was not the same as the original plan submitted to LINZ. The High Court rejected this argument and ordered specific performance. Mr Ling appealed on the basis that the Associate Judge had erred in holding that the time for assessing the validity of the extension was when notice was given under the sunset clause and in interpreting the phrase "the survey plan" in cl 24.2. The Court of Appeal dismissed the appeal. It held that the terms of the agreement and the known process for obtaining title to subdivided land made it clear that "the survey plan" referred to in cl 24.2 was the plan that was submitted to the territorial authority and to LINZ for approval as at the date specified in cl 24.2. The appeal was dismissed and Northwest was awarded costs on a band A basis with usual disbursements.

Orders