Lu v Wila Developments (Ormiston) LP - [2021] NZHC 3099

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-981

[2021] NZHC 3099

BETWEEN
HAO YUAN LU

Applicant

AND

WILA DEVELOPMENTS (ORMISTON) LP

Respondent

Hearing: 17 November 2021 (by telephone)

Appearances:

X Zhang for Applicant

S Humphrey for Respondent

Judgment:

17 November 2021

JUDGMENT OF VENNING J

Application for stay

This judgment was delivered by me on 17 November 2021 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Lee Salmon Long, Auckland
Zhang Law Limited, Auckland

LU v WILA DEVELOPMENTS (ORMISTON) LP [2021] NZHC 3099 [17 November 2021]

Introduction

[1] In a judgment delivered on 12 November 2021 the Court granted the application by Wila Developments Limited (Ormiston) LP (Wila) to remove a caveat lodged by Mr Lu against titles to five of its properties.1 The Court also directed that Mr Lu was not to lodge any further caveat against the said properties. The caveat was the third that Mr Lu had lodged against the properties. In a judgment delivered on 18 October 2021 Associate Judge Bell had directed that the first two caveats lodged by Mr Lu against the properties were to lapse.2

[2]Mr Lu has now filed an application to stay the judgments of Associate Judge

Bell of 18 October and this Court’s recent judgment.3

[3] Mr Zhang appeared for Mr Lu. Mr Zhang had only recently been instructed by Mr Lu. He sought an adjournment of the application and an interim stay. I declined that application, as the material before the Court does not support an interim stay and there would be ongoing prejudice to Wila and third parties by the grant of even an interim stay.

Background

[4] The factual background is set out in the previous judgments of the Court. It is unnecessary to repeat it in this judgment.

[5] Mr Lu has filed a notice of appeal to the Court of Appeal against the judgment of Associate Judge Bell.

[6] The application in support of the stay refers to the grounds of appeal against Associate Judge Bell’s decision, but does not refer to an appeal against the decision of this Court on 12 November 2021.4

1      Wila Developments (Ormiston) LP v Lu [2021] NZHC 3068.
2      Lu v Wila Developments (Ormiston) LP [2021] NZHC 2772.
3      The application for stay is however only filed in the CIV-2021-404-981 proceeding.
4      At present there does not appear to be an appeal against this Court’s decision of 12 November 2021.

[7]The appeal grounds appear to be that Associate Judge Bell was in error by:

(a)not finding that Wila had repudiated the agreement by a letter of 17 March 2021; and

(b)Wila had invited a renegotiation of the contract in that letter of 17 March 2021 and had accordingly itself repudiated the agreements for sale and purchase; and

(c)that in breach of the sunset date clause Wila had retained Mr Lu’s deposit so that the sunset period was…

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 Lu v Wila Developments (Ormiston) LP

Details

AGLC: Lu v Wila Developments (Ormiston) LP [2021] NZHC 3099
Case: [2021] NZHC 3099
Decision Date: 17 November 2021

CaseChat Overview and Summary

In the case of Lu v Wila Developments (Ormiston) LP, the High Court of New Zealand considered an application by Hao Yuan Lu to stay the execution of previous judgments related to the removal of caveats he had lodged against properties owned by Wila Developments (Ormiston) LP. The primary legal issue the court addressed was whether to grant an interim stay of execution pending the hearing of an appeal against the earlier judgments. The court had to weigh various factors, including the apparent strength of the appeal, the impact on third parties, and the overall balance of convenience.

The court found that the appeal against the previous judgments lacked merit, as the grounds for the appeal did not successfully challenge the earlier findings. The court also highlighted that granting a stay would cause significant prejudice to Wila and the third-party purchasers who were affected by the lapse of the caveats. The court noted that Wila had already entered into unconditional agreements for sale and purchase, and a stay would further delay the settlement process, causing potential financial penalties and legal risks for Wila. Moreover, the third-party purchasers had vested interests in the properties that would be adversely affected by a stay.

After considering the factors outlined in Rule 12 of the Court of Appeal (Civil) Rules 2005, the court concluded that the application for a stay should be declined. The overall balance of convenience did not favor a stay, as it would not only render the appeal nugatory but also cause significant harm to Wila and the third-party purchasers. Therefore, the court denied the application for a stay and ordered costs to Wila on a standard basis.

Orders