Ngoi v Wen - [2017] NZCA 519

IN THE COURT OF APPEAL OF NEW ZEALAND

CA404/2016
[2017] NZCA 519

BETWEEN

KOK ANN NGOI
First Appellant

SUNLINE ESTATE LIMITED
Second Appellant

AND

GUIRONG WEN
Respondent

Hearing:	12 October 2017
Court:	Kós P, Woolford and Collins JJ
Counsel:	D J Goddard QC and O C Gascoigne for Appellants D R Bigio QC and Y Y Wang for Respondent
Judgment:	17 November 2017 at 11.00 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe judgment and costs order made in the High Court is set aside.
CThe contract is to be performed within 30 days of the date of this judgment or on such other date agreed to by the parties.
DThe respondent is to pay the first appellant costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

The gravamen of this appeal can be reduced to the following question: did the High Court err when it concluded no binding contract was entered into by the first appellant (Dr Ngoi) and the respondent (Ms Wen) for the sale and purchase of a property for $5.28 million?
Both parties signed the sale and purchase agreement (the agreement) and their initials were next to the price. Dr Ngoi’s initials were, however, placed on the agreement adjacent to a blank space for the price before the price of $5.28 million was inserted, and subsequently initialled, by Ms Wen.
Dr Ngoi says a binding contract was formed when he confirmed to Ms Wen’s real estate agent, Mr Ngai, that he accepted Ms Wen’s offer to sell the property for $5.28 million. Ms Wen says that she only intended to be bound if Dr Ngoi re-initialled the contract and, in any event, she withdrew her offer before it could be accepted.
We have reached a different conclusion from that of Edwards J. Although we have not departed from key factual findings made by Edwards J we have had the benefit of evidence that was not before the Judge.
We allow the appeal and set aside the judgment and costs order made in the High Court. We direct that because there is a binding contract, it is to be performed no later than 30 working days from the date of this judgment or on such other date agreed to by the parties.

Background

Ms Wen is a successful businesswoman with extensive property interests in Auckland. In June 2004, she purchased 36 Oakland Road, Karaka (the property) for $2.5 million. The property is a 4.355-hectare site with a single dwelling. On 9 February 2007 Ms Wen listed the property for sale with Mr Ngai, a real estate agent at Barfoot & Thompson Ltd. The asking price was between $5 million and $6 million. Only one offer was received, in November 2013, for $3.5 million. That offer was rejected.
On 1 December 2013 Dr Ngoi, a property developer from Singapore, contacted Mr Ngai and expressed his interest in purchasing the property.
On 2…

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 Ngoi v Wen

Details

AGLC: Ngoi v Wen [2017] NZCA 519
Case: [2017] NZCA 519
Decision Date: 17 November 2017 at 11.00 am

CaseChat Overview and Summary

The appeal in Ngoi v Wen concerns the sale and purchase of a property in Auckland. The first appellant, Dr Ngoi, a property developer, sought to purchase a property from the respondent, Ms Wen. The dispute centres on whether there was a binding contract for the sale of the property at a price of $5.28 million. The appeal was heard by Kós P, Woolford, and Collins JJ in the Court of Appeal of New Zealand. The central legal issue was whether a binding contract was formed between Dr Ngoi and Ms Wen for the sale and purchase of the property. The Court of Appeal concluded that a binding contract was indeed formed when Dr Ngoi communicated his acceptance of Ms Wen's offer to Mr Ngai, the real estate agent. The reasoning was based on the principles of offer and acceptance and the global approach to contract formation. The Court found that Ms Wen's offer to sell the property for $5.28 million was communicated to Dr Ngoi, and his acceptance of that offer was effectively communicated to Ms Wen through Mr Ngai. The Court held that there was no requirement for Dr Ngoi to re-initial the contract for it to be binding. The appeal was allowed, and the High Court's judgment was set aside. The Court ordered that the contract is to be performed within 30 days of the date of the judgment or on such other date agreed to by the parties. Ms Wen was ordered to pay Dr Ngoi's costs for the appeal.

Orders