Mao v Singh - [2022] NZCA 390

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA533/2021
[2022] NZCA 390

BETWEEN	XIEYAN MAO Appellant
AND	HARGUN SINGH Respondent

Hearing:	18 November 2021
Court:	Kós P, Cooper and Courtney JJ
Counsel:	D Zhang and E Tie for Appellant M G Locke for Respondent
Judgment:	22 August 2022 at 2:30 pm

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.
CThe matter is remitted to the High Court for any further orders that may be necessary to ensure the property is transferred in accordance with the High Court stay judgment in Singh v Mao [2021] NZHC 2230.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Table of Contents

Para No

Introduction
The facts
The proceeding in the High Court
The appeal
First ground of appeal — Ms Mao’s right to cancel

The appellant’s argument

The respondent’s argument

Analysis

Second ground of appeal — relief
The stay in the High Court
Result

[1]
[3]
[27]
[35]
[36]
[36]
[47]
[48]
[70]
[77]
[79]

Introduction

The appellant, Xieyan Mao, appeals against a judgment of Associate Judge Bell ordering specific performance of an agreement for the sale and purchase of land located at 57 Yeovil Road, Te Atatu, Auckland (the Agreement).[1] Under the terms of the Agreement, executed on 4 August 2020, Ms Mao was to sell the property to the respondent, Mr Singh, with vacant possession. In fact, the property was subject to a fixed-term tenancy terminating on 6 July 2021. Ms Mao insisted that Mr Singh had to take the property subject to the tenancy and would not complete the sale on any other basis.
[1]Mao v Singh [2021] NZHC 1959 [High Court judgment].
On the settlement date, Ms Mao issued a settlement notice and later purported to cancel the Agreement on the basis that Mr Singh had not tendered settlement. Despite her breach of the Agreement by not providing vacant possession, she maintains that her settlement notice was valid and the cancellation of the Agreement was effective. She claims on appeal that the High Court was wrong to find that she had not been entitled to issue a settlement notice and to cancel the Agreement when Mr Singh did not settle in accordance with her notice. She also argues that, in any event, it was not appropriate to order specific performance.

The facts

The property that is the subject of the dispute contained a dwelling house. Being just over 800 square metres in area, the property was suitable for redevelopment. In 2019 Ms Mao obtained resource consent to subdivide and construct up to seven residential units on the property. In June 2020 she let the property under a residential tenancy agreement for a fixed term from 8 July 2020 to 6 July 2021. She then listed the property for sale with the real estate company, Shelter Realty Ltd, which was trading as…

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 Mao v Singh

Details

AGLC: Mao v Singh [2022] NZCA 390
Case: [2022] NZCA 390
Decision Date: 22 August 2022 at 2:30 pm

CaseChat Overview and Summary

Xieyan Mao appeals against a judgment of Associate Judge Bell ordering specific performance of an agreement for the sale and purchase of land at 57 Yeovil Road, Te Atatu, Auckland (the Agreement). Under the terms of the Agreement, executed on 4 August 2020, Ms Mao was to sell the property to Mr Singh, with vacant possession. In fact, the property was subject to a fixed-term tenancy terminating on 6 July 2021. Ms Mao insisted that Mr Singh had to take the property subject to the tenancy and would not complete the sale on any other basis. On the settlement date, Ms Mao issued a settlement notice and later purported to cancel the Agreement on the basis that Mr Singh had not tendered settlement. She claims on appeal that the High Court was wrong to find that she had not been entitled to issue a settlement notice and to cancel the Agreement when Mr Singh did not settle in accordance with her notice. She also argues that, in any event, it was not appropriate to order specific performance.

The appeal failed on both grounds. Ms Mao was not entitled to issue a settlement notice and cancel the Agreement when Mr Singh did not settle in accordance with her notice. Clause 11.1 of the Agreement provided that a settlement notice was effective only if the party serving it was at the time of service either in all material respects ready, able, and willing to proceed to settle in accordance with clauses 3.0 and 10.0 or was not so ready, able, and willing to settle only by reason of the default or omission of the other party. Ms Mao was plainly continuing her stance that she would not provide vacant possession under the Agreement. In this Court, but only now, she concedes that she was obliged to give vacant possession. At the time she served the settlement notice she was not prepared to do so. She was not, therefore, "in all material respects ready, able, and willing to proceed to settle in accordance with clauses 3.0 and 10.0" of the Agreement. That meant she could not satisfy the requirements for issuing a valid settlement notice.

Specific performance as sought by Mr Singh was an appropriate remedy. The remedy of specific performance has often been considered the appropriate remedy to enforce agreements for the sale and purchase of real estate and that remains the position. There is no reason why specific performance should not be ordered in this case.

The appeal is dismissed. Ms Mao must pay Mr Singh costs for a standard appeal on a band A basis and usual disbursements. The matter is remitted to the High Court for any further orders that may be necessary to ensure the property is transferred in accordance with the High Court stay judgment in Singh v Mao [2021] NZHC 2230.

Orders