Nguyen v SM & T Homes Ltd - [2016] NZCA 581

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA21/2016
[2016] NZCA 581

BETWEEN

THI KIM CHI NGUYEN AND VINH NGOC NGUYEN
Appellants

AND

SM & T HOMES LIMITED
First Respondent

BARFOOT & THOMPSON LIMITED
Second Respondent

Hearing:	9 November 2016
Court:	Randerson, Duffy and Whata JJ
Counsel:	N C King for Appellants S C Dench for First Respondent T D Rea for Second Respondent
Judgment:	6 December 2016 at 9:30 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe respondents are entitled to costs against the appellants for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Duffy J)

The appellants, Thi and Vinh Nguyen (“the Nguyens”), are the owners of a residential property at 42 Church Street, Otahuhu, which was sold at auction to the first respondent, SM & T Homes Ltd. The second respondent, Barfoot & Thompson Ltd (“Barfoots”), is the real estate agency that handled the sale for the Nguyens. Since the auction the Nguyens have refused to transfer the property to SM & T Homes. It accordingly sought and was granted an order for specific performance by Edwards J in the High Court at Auckland.[1] That judgment is now the subject of this appeal.
[1] SM & T Homes Ltd v Nguyen [2015] NZHC 3228.
The appeal raises three issues, namely whether Edwards J was right to conclude that:
(a)in cases of conflict, the evidence of the respondents was to be preferred to that of the Nguyens;
(b)a sale of the property was concluded and was enforceable by specific performance; and
(c)interest for late settlement was payable by the Nguyens at the default rate under the agreement for sale and purchase.

Background and factual issues

Thi and Vinh Nguyen are the registered owners of the property. They are sister and brother. On 8 November 2013 the Nguyens appointed Barfoots as their agent for the purpose of selling the property by auction. The sale was handled by one of Barfoots’ sales persons, Ricky Yap, who was appointed because he, like the Nguyens, is Vietnamese and so could converse with the Nguyens in their own language. Only Thi Nguyen signed the Agency Agreement, but in doing so she certified that she was authorised by Vinh Nguyen to appoint Barfoots as their agent.
The auction was initially set to take place on 11 December 2013. However, as we set out below, the date was brought forward in consequence of a written pre‑auction offer of $440,000 made by SM & T Homes on 28 November 2013, which was accepted by the Nguyens the following day.
Edwards J found that on the evening of 29 November 2013 the Nguyens signed the necessary documents to action the pre-auction offer.[2] They signed a completed “Reserve Authority”, which authorised Barfoots to sell the property by public auction on 3 December 2013 with a reserve price of $440,000. At the same time…

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.

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Details

Case: [2016] NZCA 581
Decision Date: 6 December 2016 at 9:30 am

CaseChat Overview and Summary

In Nguyen v SM & T Homes Ltd, Thi and Vinh Nguyen, the owners of a residential property, appealed a decision of the High Court which ordered the specific performance of a contract for the sale of their property to SM & T Homes Ltd. The Court of Appeal was asked to decide three issues: (a) whether the High Court was right to prefer the evidence of the respondents to that of the Nguyens; (b) whether a sale of the property was concluded and was enforceable by specific performance; and (c) whether interest for late settlement was payable by the Nguyens at the default rate under the agreement for sale and purchase. The Court of Appeal found that the High Court was correct to prefer the evidence of the respondents to that of the Nguyens. It found that there was a concluded contract for the sale of the property which was enforceable by specific performance. The Court found that the requirements of s 24 of the Property Law Act 2007 were satisfied as the contract was evidenced by a written record signed by Vinh Nguyen before the auction and by Thi Nguyen after the auction. Even if the requirements of s 24 had not been satisfied, the doctrine of part performance applied. The Court found that the Nguyens were required to pay penalty interest at 15 per cent for late settlement, as provided for in the agreement for sale and purchase. The appeal was dismissed. The respondents were entitled to costs against the appellants for a standard appeal on a band A basis and usual disbursements.

Orders