Ngoi v Wen - [2016] NZHC 1621

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001999 [2016] NZHC 1621

BETWEEN
KOK ANN NGOI

First Plaintiff

SUNLINE ESTATE LIMITED Second Plaintiff

AND

GUIRONG WEN Defendant

Hearing: 26-29 April 2016

Counsel:

I M Gault and A M Glenie for the Plaintiffs
D R Bigio and H M Z Ford for the Defendant

Judgment:

18 July 2016

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 18 July 2016 at 3.30 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: D R Bigio, Auckland
H M Z Ford, Auckland

Solicitors: Bell Gully, Auckland

NGOI v WEN [2016] NZHC 1621 [18 July 2016]

Introduction

[1] Dr Ngoi and Ms Wen are parties to a written agreement for sale and purchase of a 4.35 ha property in Karaka, Auckland for $5.28m. Both parties have signed the agreement and both have initialled next to the price.

[2] Dr Ngoi’s initial was placed on the agreement next to a blank space prior to the price of $5.28m being inserted. Ms Wen’s initial was placed on the agreement after the price of $5.28m was inserted.

[3] Dr Ngoi says a binding agreement was formed by the parties and he seeks specific performance of the written agreement.

[4] Ms Wen denies that an agreement was formed. She says that she only intended to make a counter-offer at the time she initialled the agreement, and she only intended to become bound once Dr Ngoi had initialled the agreement after the price had been inserted. Ms Wen says she withdrew the counter-offer before it could be accepted in any event.

[5] The key issue is whether an enforceable agreement for sale and purchase was formed between the parties.

Background

[6] Ms Wen is a successful businesswoman with extensive experience in selling and purchasing property. She is the director of companies which own and operate the Formosa golf course.

[7] In 2007 Ms Wen engaged Mr Ngai, a real estate agent with Barfoot & Thompson, to market the Karaka property. It was marketed with a price range of $5
– $6m.

[8] There was little interest in the property for a number of years, but in late

2013, Dr Ngoi contacted Mr Ngai and indicated he wanted to make an offer.

Dr Ngoi is a developer based in Singapore and was interested in a number of properties being marketed by Barfoot & Thompson at the time.

[9] Dr Ngoi indicated he would be prepared to pay $3.9m for the property. His offer was made on the standard REINZ/ADLS agreement and was conditional on Dr Ngoi being satisfied that the property was suitable for intended use after undertaking a due diligence investigation. The deadline for satisfaction of that condition was 4.00 pm, 120 working days after the date of the agreement. The proposed settlement date was 12 December 2014.

[10] Mr Ngai presented Dr Ngoi’s offer to Ms Wen on 12 January 2014. Mr Ngai verbally translated the terms…

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 [2016] NZHC 1621
Case: [2016] NZHC 1621
Decision Date: 18 July 2016

CaseChat Overview and Summary

In the case of Ngoi v Wen, the High Court of New Zealand was tasked with determining whether a binding agreement for the sale and purchase of a property in Karaka, Auckland was formed between Dr Ngoi and Ms Wen. The central dispute hinged on whether an enforceable contract was created through a series of negotiations and communications. The court examined whether an oral agreement was reached during telephone calls, if Ms Wen's initials on the contract signalled an acceptance of Dr Ngoi's offer, and if Dr Ngoi's verbal acceptance of Ms Wen's counter-offer constituted a binding agreement. The court meticulously assessed the credibility and reliability of the evidence presented, particularly focusing on the communications between the parties and the intentions behind their actions. Ultimately, the court found that no enforceable agreement was formed, as the evidence did not support the plaintiffs' claims of a concluded contract through either oral agreement, initialling of the contract, or verbal acceptance of a counter-offer. The court's decision was based on the lack of clear and convincing evidence that Ms Wen intended to be immediately bound by any of the proposed terms. The plaintiffs' claim for specific performance was dismissed, and the court did not find it necessary to address the enforceability of the agreement under section 24 of the Property Law Act, given that no binding contract was established.

Orders