Lu v Madaan

[2023] NZHC 3421

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1520

[2023] NZHC 3421

IN THE MATTER

of breach of contract and specific performance

BETWEEN

SUYING LU

Plaintiff

AND

VIKRAM MADAAN

Defendant

Hearing:

30 November 2023

Appearances:

T M Pasley for Plaintiff

No appearance for Defendant

Judgment:

30 November 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 30 November 2023 at 4:30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

LU v MADAAN [2023] NZHC 3421 [30 November 2023]

Introduction

[1]                 This is an unopposed application for summary judgment which originally sought specific performance of  a contract  under which  the plaintiff,  Ms Lu,  sold  a property  in  Mangere  East,   Auckland   to   the   defendant,   Mr Madaan.   On   29 November 2023, Ms Lu gave Mr Madaan notice that she cancelled the agreement. Ms Lu now seeks damages which she had claimed in the alternative in her statement of claim.

Background

[2]                 On 5 October 2021, Mr Madaan purchased the property at 25 Raglan Street, Mangere East, Auckland (the property) from Ms Lu  at  auction  for  $1,400,000. Mr Madaan paid the deposit. Settlement was to occur on 5 August 2022.

[3]                 As settlement date approached, Mr Madaan sought to defer settlement, with each request to defer being declined.

[4]                 In early August 2022, Mr Madaan advised Ms Lu that he wished the tenant of the property to remain in occupation. The parties made the necessary changes to the vacant possession requirements in the contract. No issue has been raised in respect of those arrangements.

[5]                 Mr Madaan did not settle the purchase.   On 8 August 2022 Ms Lu issued     a settlement notice. On 16 August 2022, Mr Madaan said he could not raise the purchase price and he sought to settle at a price of $1,000,000.00. Ms Lu declined that proposal.

[6]                 Mr Pasley, counsel for Ms Lu, characterised this as a “standard” failure to settle case. Mr Madaan has been served and while he has not filed any pleadings, he instructed counsel who, on Mr Madaan’s behalf, signed a joint memorandum in relation to the first call of Ms Lu’s application for summary judgment, which recorded

that counsel were conferring about the prospect of an agreed resolution. Nonetheless, counsel agreed that the matter should be set down for a hearing and timetable directions (including for the filing of papers in opposition) through to the hearing were made. Mr Madaan has taken no steps to defend this proceeding.

[7]                 I  am  satisfied  that  in  relation  to  Mr Madaan’s  obligation  to  settle  the   5 October 2021 contract, he has no arguable defence. The contract was unconditional. Mr Madaan has not raised any reason why he is not obliged to settle.

Summary judgment principles

[8]                 Mr Pasley set these out in detail in his written submissions. They are well known. I do not repeat them here. The onus is on Ms Lu to show there is no real question to be tried and the Court may take a robust and realistic approach where the facts warrant it.1

[9]                 Again, faced with an unconditional contract which Mr Madaan has failed to settle and not raised any defence, I am satisfied this is a case where summary judgment as to liability is appropriate.

Orders

[10]              I am satisfied Ms Lu has demonstrated that Mr Madaan has no defence to the order for specific performance sought.

[11]              There is judgment against Mr Madaan for failure to settle the agreement for sale and purchase dated 5 October 2021, under which he purchased the property at 25 Raglan Street, Mangere East, Auckland. Ms Lu is entitled to damages representing diminution in value of the amount payable under the sale and purchase agreement versus the market value as at the date of cancellation on 29 November 2023 less      a credit for the deposit already paid.

1      Krukziener v Hanover Finance Ltd [2008] NZCA 187.

[12]              Pursuant to r 11.2(d) of the High Court Rules 2016 (the Rules) the following directions are made to determine whether summary judgment on quantum is available:

(a)Ms Lu is to instruct a valuer by 8 December 2023 to assess the difference of the value of the property as at the date of cancellation (29 November 2023) and the amount payable under the agreement for sale and purchase as at the settlement date of 5 August 2022.

(b)Ms Lu is to file and serve a memorandum setting out the amounts that she seeks by way of damages, by 15 January 2024 together with affidavits in support. The valuer’s evidence is to comply with the Code of Conduct for Expert Evidence.

(c)Whether summary judgment on quantum can be granted will then be determined on the papers by me or by a hearing allocated if necessary.

Costs

[13]              Ms Lu sought indemnity costs in her statement of claim. I am satisfied that indemnity costs are appropriate pursuant to r 14.6(4)(a) of the Rules. Mr Madaan frivolously, improperly or unnecessarily took a step in the proceeding by filing a joint memorandum in respect of the first call of this proceeding which suggested that he may defend the proceeding when it was clear beyond doubt he had no defence. That the memorandum openly records Mr Madaan was trying to resolve the matter was, in effect, an acknowledgment of liability.

[14]              Mr Madaan dragged this proceeding out and during that time has been transferring properties out of his name. Mr Madaan’s conduct in the proceeding, in my view, warrants that he pay indemnity costs.

[15]              Ms Lu is to file a memorandum with the normal supporting information quantifying the costs, prior to 8 December 2023.

Associate Judge Lester

Solicitors:
Robertsons, Auckland (for Plaintiff)

Copy to:
Mr V Madaan, self-represented defendant