Ngoi v Wen - [2017] NZCA 85

IN THE COURT OF APPEAL OF NEW ZEALAND

CA404/2016
[2017] NZCA 85

BETWEEN

KOK ANN NGOI
First Appellant

SUNLINE ESTATE LIMITED
Second Appellant

AND

GUIRONG WEN
Respondent

Hearing:	20 March 2017
Court:	French, Miller and Winkelmann JJ
Counsel:	D J Goddard QC and O C Gascoigne for Appellants D R Bigio QC for Respondent
Judgment:	28 March 2017 at 11.30 am

JUDGMENT OF THE COURT

A The applications for an extension of time to file the case on appeal and for leave to file further evidence on appeal are granted.
BThe respondent must pay one set of costs for a standard application on a band A basis, with usual disbursements on both applications.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Before us are two applications, one for an extension of time for filing a case on appeal under r 43 of the Court of Appeal (Civil) Rules 2005 and the other for leave to adduce fresh evidence under r 45.
The case on appeal ought to have been filed by 16 November 2016, but through oversight on part of the appellants’ then solicitors it was not filed until 5 December 2016. The delay is very short, and it cannot responsibly be suggested that any prejudice has resulted from it, although the respondent complains that the appeal itself is causing her difficulty.
Mr Bigio QC accordingly sought to resist the application on the ground that the appeal has no prospects of success. The appeal is likely to turn on the existence of an oral agreement between the parties, and that question in turn depends upon whether the respondent participated in a call between one of the appellants, Mr Ngoi, and the respondent’s real estate agent, Mr Ngai. It is said that the appeal is intensely fact-based, turning on assessments of credibility and reliability, and this Court is unlikely to intervene with the findings of the trial Judge, Edwards J.[1]
[1]Ngoi v Wen [2016] NZHC 1621.
We do not accept that the appeal is without prospect of success. It is an appeal by way of rehearing, and it may be, as Mr Goddard QC contended, that established facts will demonstrate that the trial Judge’s conclusions on the critical issue were wrong. The Judge did not appear to base her conclusions on demeanour, which is in any event an unreliable guide to truthfulness. It also appears to be arguable that it may not matter if the respondent did not participate in the conference call, since Mr Ngai was her agent.[2] The argument will be that a written contract was concluded when she signed the amended agreement for sale and purchase.
[2]Powierza v Daley [1985] 1 NZLR 558 (CA) at 560.
More than that it is not necessary to say. The application for an extension of time is granted.
The second application concerns a letter dated 3 March 2014 that Mr Ngai sent to a manager at Barfoot, the real estate agency where he is employed. It refers to…

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 85
Case: [2017] NZCA 85
Decision Date: 28 March 2017 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellants, Kok Ann Ngoi and Sunline Estate Limited, sought to appeal against a decision made in the High Court in favour of the respondent, Guirong Wen. The appellants applied for an extension of time to file their appeal case and for leave to file further evidence on appeal, both of which were granted by the Court. The appeal case was originally due to be filed on 16 November 2016, but was not filed until 5 December 2016 due to an oversight by the appellants' solicitors. The Court acknowledged the short delay and that no prejudice had resulted from it.

The primary legal issue before the Court was whether the appeal had any prospects of success. The respondent argued that the appeal was unlikely to succeed as it depended on assessments of credibility and reliability, which the Court of Appeal was unlikely to intervene with. The Court disagreed, stating that the appeal was by way of rehearing and that established facts could demonstrate that the trial Judge's conclusions were wrong. Additionally, the Court found that it was arguable that the respondent's participation in the conference call was not necessary since the agent had been present.

The Court also granted the appellants' application for leave to adduce fresh evidence, which was a letter written by the respondent's agent. The letter was found to be cogent and went directly to the Judge's reasons for finding that the respondent had not participated in the conference call. The Court found that the evidence was fresh and that the risk of the case being sent back for retrial or further hearing did not justify refusing to admit the evidence.

The Court ordered that the respondent must pay one set of costs for a standard application on a band A basis, with usual disbursements on both applications. The costs will follow the result of the appeal.

Orders