Northwest Developments Limited v Ling - [2019] NZHC 1023

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2399

[2019] NZHC 1023

BETWEEN NORTHWEST DEVELOPMENTS LIMITED
Plaintiff

AND

KE LING

Defendant

Hearing: 1 May 2019 at 10:00am

Appearances:

M J Fisher and K J Ng for the Plaintiff A J B Holmes for the Defendant

Judgment:

10 May 2019

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 10 May 2019 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules.
…………………………………
Deputy Registrar

Solicitors:
Castle/Brown (C Girven), Newmarket, Auckland, for the Plaintiff Pidgeon Law (J M Pidgeon), Auckland, for the Defendant

Counsel:
M J Fisher/K J Ng, Erskine Chambers, Auckland, for the Plaintiff
A J B Holmes, Chancery Street Chambers, Auckland, for the Defendant

NORTHWEST DEVELOPMENTS LIMITED v KE LING [2019] NZHC 1023 [10 May 2019]

[1] Northwest Developments Ltd as vendor sues Ke Ling as purchaser for specific performance of an agreement of 24 May 2016 for the sale of Lot 65 of its subdivision at 81 Nobilo Road, Huapai, Auckland. It has applied for summary judgment.

[2] The single issue is whether Ke Ling was entitled to cancel the contract on 6 September 2018 under a condition requiring that title for the lot should issue by 31 March 2018. The case turns on cl 24.2 of the agreement:

24.2 Should title not issue by 31 March 2018 then either party may cancel the agreement by giving written notice to the other party notifying them that the agreement is now terminated. Provided however that in the event that the vendor has submitted the survey plan for approval to LINZ the vendor may at its sole discretion, prior to 31 March 2018, notify the purchaser that the time for satisfaction of this condition has been extended for a further 6 months.

Title did not issue until 11 September 2018. Northwest says that on 16 February 2018, it extended time under the proviso in cl 24.2. Mr Ling, however, denies that the extension was effective. The point of difference is whether Northwest had submitted the survey plan for approval to LINZ before it gave notice on 16 February 2018. Northwest did submit a survey plan, but Mr Ling says that it was not the survey plan. He says that the deposited survey plan that led to the issue of titles was lodged after 31 March.

[3] In my judgment Northwest was entitled to extend time under the proviso to clause 24.2 because it had already lodged a qualifying survey plan on 1 November 2017. While it later lodged a replacement plan after 31 March 2018, that does not mean that the condition for giving notice to extend time had not been met. Because title did issue within the extra six months, Ke Ling was not entitled to cancel for non- satisfaction of clause 24.2. He should be ordered to perform the agreement.

[4] In Krukziener v Hanover Finance Ltd the Court of Appeal re-stated…

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 Northwest Developments Limited v Ling

Details

AGLC: Northwest Developments Limited v Ling [2019] NZHC 1023
Case: [2019] NZHC 1023
Decision Date: 10 May 2019

CaseChat Overview and Summary

Northwest Developments Limited sued Ke Ling for specific performance of an agreement for the sale of a lot at 81 Nobilo Road, Huapai, Auckland. The single issue was whether Ke Ling was entitled to cancel the contract under a condition requiring that title for the lot should issue by 31 March 2018. The case turned on clause 24.2 of the agreement, which provided that if title did not issue by 31 March 2018, either party could cancel the agreement by giving written notice. However, the vendor had the power to extend the time for satisfaction of this condition if it had submitted the survey plan for approval to Land Information New Zealand (LINZ) before 31 March 2018. The point of difference was whether Northwest had submitted the survey plan for approval to LINZ before giving notice to extend time on 16 February 2018. Northwest submitted that it had submitted the survey plan on 1 November 2017, but Ke Ling said that the deposited survey plan that led to the issue of titles was lodged after 31 March. The court found that Northwest was entitled to extend time under the proviso to clause 24.2 because it had already lodged a qualifying survey plan on 1 November 2017. While it later lodged a replacement plan after 31 March 2018, that did not mean that the condition for giving notice to extend time had not been met. Because title did issue within the extra six months, Ke Ling was not entitled to cancel for non-satisfaction of clause 24.2. He should be ordered to perform the agreement. The court ordered that Ke Ling perform the agreement for sale and purchase and fixed the date for settlement at 31 May 2019. Ke Ling was to pay Northwest Developments Limited the costs of the proceeding.

Orders