Ngoi v Wen - [2018] NZHC 3378

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-1999

[2018] NZHC 3378

BETWEEN
KOK ANN NGOI

First Plaintiff

SUNLINE ESTATE LIMITED
Second Plaintiff

AND

GUIRONG WEN

Defendant

Hearing: 3 August 2018

Appearances:

S A Barker and O C Gascoigne for Plaintiffs

C T Walker QC and A Lenard-Sokorac for Defendant

Judgment:

18 December 2018

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 18 December 2018 at 10 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors: Buddle Findlay, Auckland
Gilbert Walker, Auckland

NGOI v WEN [2018] NZHC 3378 [18 December 2018]

Introduction

[1] On 14 January 2014, the first plaintiff, Dr Ngoi, agreed to purchase, and the defendant Ms Wen to sell, land at Karaka (“agreement” and “property”). Ms Wen subsequently denied the agreement was binding and, in August 2014, Dr Ngoi and the second plaintiff (“Sunline”), being Dr Ngoi’s nominee, commenced this proceeding seeking an order for specific performance. Nothing turns on the distinction between Dr Ngoi and Sunline, and references below to the former include the latter.

[2] In her judgment of 18 July 2016, Edwards J ruled in favour of Ms Wen.1 Dr Ngoi appealed against that decision, successfully, and on 17 November 2017 the Court of Appeal directed the parties to perform the agreement within 30 days of the date of judgment, or such other date as the parties agreed.2

[3] Shortly before the 30-day period expired, Ms Wen applied for leave to appeal to the Supreme Court. The Court of Appeal stayed execution of its judgment to allow the application to be determined. The Supreme Court declined leave on 5 March 2018.3

[4] The upshot of all of this was that the parties ought to have settled on or about 8 March 2018. They did not and on 14 March 2018, Ms Wen served notice requiring settlement by 19 March 2018. Ultimately settlement took place on 6 April 2018 but there was disagreement as to the sum due, that being resolved in the short term by having a stakeholder hold funds.

[5] This judgment determines interlocutory applications made by the parties to determine the sum due. At the outset of the hearing I expressed reservations as to the procedure the parties had adopted to bring these issues before the Court. However, Mr Barker, counsel for the plaintiffs, assured me that the issues that arose were supplemental or ancillary to the Court of Appeal’s order for specific performance, and that the parties wished to have their applications determined, regardless of any consequences that proceeding in this manner may have for rights of enforcement

1      Ngoi v Wen [2016] NZHC 1621.
2      Ngoi v Wen [2017] NZCA 519, (2017) 19 NZCPR 1.
3      Wen v Ngoi [2018] NZSC 18.

and/or appeal. I record also that counsel advised they would take care of the “arithmetic” once the issues were determined.

[6]The issues, and the answers,…

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 [2018] NZHC 3378
Case: [2018] NZHC 3378
Decision Date: 18 December 2018

CaseChat Overview and Summary

In Ngoi v Wen, the High Court of New Zealand ruled on the interpretation and application of a property sale agreement between Dr Ngoi and Ms Wen. The primary issue was the determination of the sum due on settlement, focusing on whether the agreement provided for vacant possession or if the property was sold tenanted. The Court found that the agreement provided for the property to be sold tenanted, applying clause 3.13(5) to ascertain the sum due. The Court rejected the argument that the agreement became one providing for vacant possession once the original tenant vacated. The Court also ruled that Dr Ngoi was liable for rates and costs incurred during an application for rezoning but was not liable for penalty interest, as Ms Wen's notice to fix a due date for payment under clause 3.12 was not effective after the Court of Appeal's order for specific performance. The Court reserved leave to apply on the issue of costs.

The Court's reasoning hinged on the interpretation of the agreement's clauses, particularly 3.13(2) and 3.13(5), and the effect of the Court of Appeal's order for specific performance. The Court found that the words "with current tenancy" in the agreement sufficiently constituted particulars of the tenancy, enabling the ascertainment of those particulars. The Court also held that the state of affairs at settlement did not alter the agreement's terms regarding the sale's nature. Finally, the Court determined that Ms Wen's notice under clause 3.15 did not effectively establish a due date for payment, and thus she was not entitled to penalty interest.

Orders