Lo v Lo - [2022] NZCA 98

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA418/2020
[2022] NZCA 98

BETWEEN	HO SHING LO Appellant
AND	HO CHEONG LO First Respondent CHI NA KWOK Second Respondent

Hearing:	29 July 2021 (consent memorandum received 2 March 2022)
Court:	Goddard, Thomas and Wylie JJ
Counsel:	M D Lloyd for Appellant M G Keall for Respondents
Judgment: (On the papers)	30 March 2022 at 2.00 pm

JUDGMENT NO 2 OF THE COURT

AOrder by consent modifying the terms of the buy-out orders made by this Court in Lo v Lo [2021] NZCA 693 in respect of the property owned by the parties to permit a buy-out notice to be given by the respondents to the appellant at any time prior to 1 July 2022.
BOrder by consent for sale of the property in the circumstances and on the terms set out in the Appendix to this judgment.
CThere is no order as to costs.

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REASONS OF THE COURT

(Given by Goddard J)

The appellant and the first respondent are the registered owners of a property in Flat Bush, Auckland. The appellant applied to the High Court for an order for sale of the property. That application was unsuccessful.[1] He appealed to this Court.
[1]Lo v Lo [2020] NZHC 1614.
On 16 December 2021 this Court delivered a judgment allowing the appeal.[2] The Court made an order permitting the respondents to buy out the appellant’s share in the property on the terms set out in that judgment (the buy-out orders). Leave was reserved to the parties to file submissions in relation to the terms of the orders to be made to govern the scenario where a buy-out does not proceed.
[2]Lo v Lo [2021] NZCA 693 [December 2021 judgment].
Counsel have filed a joint memorandum dated 1 March 2022 advising that the parties have reached agreement on the terms of orders to be made in respect of a possible buy-out by the respondents of the appellant’s share in the property, and in respect of a sale of the property if a buy-out does not proceed.
The December 2021 judgment directed that the respondents may, at any time prior to 1 April 2022, give a written notice to the appellant electing to purchase the appellant’s share in the Flat Bush property.[3] Leave was reserved to the parties to apply for directions in relation to any matters arising in connection with the implementation of these orders.[4] The parties have agreed to extend the date by which a buy-out notice may be given to 1 July 2022. We modify the buy-out orders accordingly.
[3]December 2021 judgment, above n 2, appendix at [A].
[4]December 2021 judgment, above n 2, appendix at [E].
In the event that a buy-out by the respondents of the appellant’s share of the property does not proceed, we make an order by consent for the sale of the property in the circumstances and on the terms set out in the Appendix to…

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 Lo v Lo

Details

AGLC: Lo v Lo [2022] NZCA 98
Case: [2022] NZCA 98
Decision Date: 30 March 2022 at 2.00 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand was presented with an appeal by Ho Shing Lo, the appellant, against Ho Cheong Lo and Chi Na Kwok, the respondents. The central dispute in this case revolved around the ownership and potential sale of a property located in Flat Bush, Auckland. The appellant had previously applied to the High Court for an order to sell the property, which was denied. This decision led the appellant to appeal to the Court of Appeal, which allowed the appeal and made orders permitting the respondents to buy out the appellant’s share in the property. The current case before the Court of Appeal pertains to the terms of these buy-out orders and the potential sale of the property if a buy-out does not proceed.

The legal issues before the Court of Appeal were to determine the terms of the buy-out orders made previously and to establish the terms for the sale of the property if a buy-out by the respondents did not occur. The Court was required to consider the consent memorandum filed by the parties, which outlined their agreed terms for the buy-out and sale of the property. The Court needed to assess whether these terms were fair and in line with the previous judgment and orders made by the Court of Appeal.

The Court of Appeal, in delivering its judgment, noted that the parties had reached an agreement on the terms for a possible buy-out by the respondents of the appellant’s share in the property and for the sale of the property if a buy-out did not proceed. The Court modified the buy-out orders to extend the date by which a buy-out notice could be given from 1 April 2022 to 1 July 2022, as per the parties' agreement. Furthermore, the Court made an order by consent for the sale of the property, should a buy-out not proceed, on the terms set out in the Appendix to the judgment. These terms included obtaining an independent valuation, jointly appointing a real estate agent, setting a reserve price for the auction, and detailing the process for dividing the sale proceeds among the parties.

The Court of Appeal issued an order modifying the terms of the buy-out orders to permit a buy-out notice to be given by the respondents to the appellant at any time prior to 1 July 2022. Additionally, the Court ordered the sale of the property in the event that a buy-out did not proceed, on the terms agreed upon by the parties and set out in the Appendix to the judgment. These terms included the valuation process, the appointment of a real estate agent, the reserve price for the auction, and the division of the sale proceeds among the parties. The Court did not make any order as to costs.

Orders