Mo v Yang

[2019] NZHC 2447

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001927

[2019] NZHC 2447

BETWEEN

QINGHUA MO and YU HUANG

Plaintiffs

AND

ZHE YANG and JACKSON ING WEI LAW

Defendants

Hearing:

15 March 2019

Appearances:

G D Wiles for the Plaintiffs

I Hutcheson for the Defendants

Judgment:

27 September 2019

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 27 September 2019 at 11.30 am pursuant to Rule 11.5 of the High Court Rules.

…………………………………

Deputy Registrar

Solicitors / Counsel:

Croftfield Law Ltd, Auckland DX Law Ltd, Auckland

G D Wiles, Auckland

I M Hutcheson, Auckland

MO v YANG [2019] NZHC 2447 [27 September 2019]

Introduction

[1]        In this proceeding the plaintiffs seek summary judgment on their statement of claim against the defendants in which they seek orders for:

(a)the return of $350,000 invested in the defendants’ intended subdivision and redevelopment of a residential property at Huxley Place,

Glen Innes; and

(b)a share of the profits made when the defendants abandoned the planned development and resold the property.

[2]        The statement of claim – filed on 7 September 2018 – relies on two causes of action: breach of an oral, partly performed, contract and, in the alternative, a resulting trust. The plaintiffs seek summary judgment on the first cause of action.1 In support they rely on a verifying affidavit setting out their belief that there is no defence to their claim. They also say there is nothing in the defendants’ evidence that raises an arguable defence or that is not completely answered by their own affidavit evidence in reply. They contend that the appropriate relief is an order requiring the return of their investment, along with a share of the profits on the resale of the property.

[3]        The application for summary judgment is opposed. At the hearing counsel for the defendants advised that the defendants’ opposition is founded essentially on two issues which he summarised as follows:

(a)The terms of the oral agreement are partially disputed and may have a bearing on quantum (assuming breach, which is denied);

(b)There was no breach arising from the resale as the parties agreed to transfer the investment to  another  development  property  at  Taurima Ave in Glen Innes.

1      This was the position taken by the plaintiffs at the hearing, on the basis that the second cause of action relies on an alternative factual finding that there was no agreement formed in November 2015.

[4]        These issues give rise to disputed matters of fact and, as is often the case with disputes relating to oral contracts, they are not readily determined summarily. But the plaintiffs contend that this is a case where a robust approach to liability is warranted even if the Court finds that quantum cannot be dealt with summarily; that on a proper analysis of the evidence there is no barrier to a finding on liability either because the defendants’ contentions are improbable or because the time for performance of…