Northwest Developments Limited v Xue - [2019] NZHC 1042

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2402

[2019] NZHC 1042

BETWEEN NORTHWEST DEVELOPMENTS LIMITED
Plaintiff

AND

LIN XUE

Defendant

Hearing: 13 May 2019

Appearances:

K J Ng for the Plaintiff

Lin Xue in person, accompanied by his wife Huajing Zhang

(Interpreter)

Judgment:

13 May 2019

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Castle Brown (Colin Girven), Newmarket, Auckland, for the Plaintiff

Copy for:
M J Fisher/K J Ng, Auckland, for the Plaintiff Huajing Zhang (translator) wife of Defendant,

NORTHWEST DEVELOPMENTS LIMITED v LIN XUE [2019] NZHC 1042 [13 May 2019]

[1] Northwest Developments Ltd as vendor sues Lin Xue as purchaser for specific performance of an agreement of 16 June 2016 for the sale of lot 60 of its subdivision at 81 Nobilo Road, Huapai, Auckland. It has applied for summary judgment.

[2] The agreement initially had a sunset date of 31 March 2018 by which title was to issue. Northwest says that the parties agreed to extend the sunset date to 31 October 2018. Title issued in September 2018. Northwest wishes to settle but Mr Xue refuses to do so. He has raised these matters in opposition to the application for summary judgment:

(a)He was induced to enter into the agreement by a misrepresentation that title would issue in or around September 2017.

(b)He was induced to agree to the variation extending the sunset date by a misrepresentation.

(c)The agreement to change the sunset date is not enforceable because it is not supported by consideration.

(d)There was a breach of warranty under cl 6.1(1) of the agreement because there were outstanding requirements at the time of the agreement.

(e)The vendor did not use its best endeavours to obtain title as soon as was reasonably practicable.

(f)In September 2017 the vendor misrepresented the likely settlement date.

(g)The vendor has reduced the value of the property by building houses on unsold lots in the subdivision.

[3] In Krukziener v Hanover Finance Ltd, the Court of Appeal re-stated the principles on which a plaintiff’s summary judgment application is decided:1

[26] The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried. … The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated. … The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: … In the end the Court’s assessment of the evidence is a matter of judgment. The Court…

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 Xue

Details

AGLC: Northwest Developments Limited v Xue [2019] NZHC 1042
Case: [2019] NZHC 1042
Decision Date: 13 May 2019

CaseChat Overview and Summary

Northwest Developments Limited, the plaintiff, is a property developer that entered into an agreement to sell a lot in a residential subdivision to Lin Xue, the defendant. The defendant has refused to complete the purchase, alleging various misrepresentations and breaches of contract by the plaintiff. The plaintiff has applied for summary judgment, seeking an order that the defendant complete the purchase of the lot. The defendant has opposed the application, asserting various objections. The court must decide whether the defendant has any defence to the claim. The court must also decide whether, if the defendant has no defence, the court should exercise its discretion to order specific performance. The court must also decide on the costs of the proceeding.

The court found that the defendant's objections were not well founded. The court found that the defendant had no evidence of the alleged misrepresentations. The court found that the variation of the agreement to extend the sunset date was supported by practical benefit. The court found that the defendant had not provided evidence of any breach of the agreement to use best endeavours to issue title as soon as reasonably practicable. The court found that the defendant had no evidence to support his claim that the plaintiff had reduced the value of the property by building houses on other lots in the subdivision.

The court found that the defendant had no defence to the claim. The court found that there were no discretionary factors that would prevent the court from ordering specific performance. The court ordered specific performance and reserved leave to the parties to apply for further directions. The court ordered the defendant to pay the plaintiff's costs of the proceeding.

Orders