Lu v Madaan

[2024] NZHC 478

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1520

[2024] NZHC 478

IN THE MATTER

of breach of contract and specific performance

BETWEEN

SUYING LU

Plaintiff

AND

VIKRAM MADAAN

Defendant

Hearing:

On the papers

Counsel:

T M Pasley for Plaintiff

No appearance for Defendant

Judgment:

7 March 2024

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Quantum)

This judgment was delivered by me on 7 March 2024 at 4.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

LU v MADAAN [2024] NZHC 478 [7 March 2024]

Introduction

[1]        The background to this quantum judgment is set out in the liability judgment dated 30 November 2023.1

[2]        Mr Madaan failed to settle his  purchase  from  Ms Lu  of  her  property  at  25 Raglan Street,  Mangere  East,  Auckland.  Mr Madaan  purchased  the  property at auction for $1,400,000.00. I was satisfied that Mr Madaan was liable for his failure to settle his unconditional contract with Ms Lu.

[3]        Up and until shortly before the  hearing on 30 November 2023  (at which   Mr Madaan did not appear and was not represented), Ms Lu sought an order for specific performance. The day before the hearing, Ms Lu gave Mr Madaan notice that she had cancelled the agreement and would seek damages she had claimed in the alternative in her statement of claim.

[4]        On  21 December 2023,  Ms Lu  filed  an  amended  statement  of   claim.   Mr Pasley, counsel for Ms Lu, has advised in his memorandum that the amended statement of claim was served on Mr Madaan. An affidavit confirming service should be filed and the order that I make as to damages may not be sealed until that affidavit of service has been filed.

[5]The amended statement of claim sets out Mr Madaan’s purchase price at

$1,400,000.00 and his refusal to settle.

[6]        Ms Lu seeks loss of profit damages in the sum of $405,000.00 being the difference between the agreed purchase price of $1,400,000.00 less the property’s market value as at the date of cancellation of $925,000.00 less the deposit of

$70,000.00 paid by Mr Madaan on 7 October 2021.

[7]        I am satisfied it is appropriate that damages be calculated as at the date of cancellation. Mr Madaan effectively strung Ms Lu along as to his intention to settle.

1      Lu v Madaan [2023] NZHC 3421.

It became clear that he had no intention of settling and the evidence is that he was transferring assets out of his name immediately prior to the November 2023 hearing.

[8]        Adopting the date of cancellation as the date for assessing losses is also appropriate given Ms Lu had entered into another contract in reliance on Mr Madaan meeting his contractual obligations and incurring additional holding costs as a result.

[9]        Ms Lu had no reason not to seek specific performance of the contract at the time she issued her proceedings, but Mr Madaan’s actions in apparently seeking to rid himself of assets was a good reason for Ms Lu to cancel the contract and seek damages.

[10]      I am satisfied based on the valuation evidence, that Ms Lu has suffered the loss set out in the memorandum of Mr Pasley dated 21 December 2023.

[11]      Accordingly, there is judgment against Mr Madaan in the sum of $405,000.00. Interest is to run on that sum under s 10 of the Interest on Money Claims Act 2016 from 6 August 2022, being the date Mr Madaan failed to settle.

[12]      Indemnity costs  were  awarded  against  Mr Madaan  in  the  judgment  of  30 November 2023. I see no reason why Mr Madaan should not be liable for indemnity costs in respect of the steps Ms Lu has had to take to confirm quantum. Essentially, Mr Madaan chose to walk away from a clear contractual commitment he owed to Ms Lu and has been transferring valuable properties out of his name into his father’s name in what appears to be an attempt to frustrate Ms Lu’s ability to a recovery against him. There is also the fact that Mr Madaan, as I have said, effectively strung Ms Lu along with various approaches about achieving settlement which all came to nothing.

[13]      Accordingly, Mr Madaan is to pay indemnity costs and disbursements in respect of the fixing of the damages in this matter. Counsel are to file a memorandum with the usual supporting material within 10 working days of this judgment.

Associate Judge Lester

Solicitors:
Robertsons, Auckland (for Plaintiff)

Copy to:

Mr V Madaan, self-represented defendant