Northwest Developments Limited v Zhang - [2018] NZHC 3169

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-2625

[2018] NZHC 3169

BETWEEN
NORTHWEST DEVELOPMENTS LIMITED

Plaintiff

AND

CHENG ZHANG, JIN KUK JUNG, PILL SOON SO

Defendants

Hearing: 05 September 2018

Appearances:

M J Fisher for Plaintiff

R M Dillon for Defendants

Judgment:

4 December 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 04 December 2018 at 3pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:
Castle Brown, Auckland Queen City Law, Auckland

Counsel:
M J Fisher, Auckland

NORTHWEST DEVELOPMENTS LIMITED v ZHANG & ORS [2018] NZHC 3169 [4 December 2018]

[1]The parties seek costs in relation to interlocutory applications which each made

– following the making of orders by way of summary judgment regarding the completion of arrangements for the subdivision of a parcel of land – and then withdrew.

Relevant factual background1

[2] The owners of five parcels of land in an area known as the Huapai Triangle agreed to work together to enable their land to be subdivided and, to that end, to seek an appropriate variation to the District Plan. Their agreement was recorded in what became known as the 5 Owners Agreement.

[3]Under the 5 Owners Agreement, each party agreed, among other things:

(a)to grant easements over its land, including for access and roading purposes, and to do all that was necessary to vest in the District Council land required for roading purposes; and

(b)to assign its rights and obligations under the Agreement when transferring its land to a successor in title, and to cause its successor in title to be bound to the transferor’s rights and obligations under the Agreement.

[4] The defendants (the Jung interests), owned the property at 77 Nobilo Road, one of the parcels of land covered by the 5 Owners Agreement, and are signatories to the 5 Owners Agreement.

[5] The plaintiff (Northwest) became a party to the 5 Owners Agreement when it purchased from one of the signatories to the Agreement another parcel of land, which was adjacent to 77 Nobilo Road and covered by the Agreement, and agreed to be bound by the 5 Owners Agreement.

1 The following summary is drawn from the decision of Brewer J in Northwest Development Ltd v Zhang [2018] NZHC 1736.

[6] The District Plan was varied as sought by the parties to the 5 Owners Agreement.

[7] In April 2016, the Jung interests and other owners consented to the subdivision and associated infrastructure works proposed by Northwest for its land, including the road.

[8] In May 2016, the Jung interests entered into a sale and purchase agreement with Sanli Homes Ltd (Sanli) for the property at 77 Nobilo Road. The Jung interests did not, however, assign or transfer to Sanli their rights and obligations under the 5 Owners Agreement and did not require Sanli to be bound by the 5 Owners Agreement.

[9] After Northwest had completed the subdivision…

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 Zhang

Details

AGLC: Northwest Developments Limited v Zhang [2018] NZHC 3169
Case: [2018] NZHC 3169
Decision Date: 4 December 2018

CaseChat Overview and Summary

Northwest Developments Limited initiated proceedings against Cheng Zhang, Jin Kuk Jung, and Pill Soon So concerning the completion of arrangements for the subdivision of a parcel of land. The High Court of New Zealand Auckland Registry presided over the case, which involved interlocutory applications made by both parties following summary judgment orders regarding the land subdivision. The primary legal issues revolved around whether the party withdrawing an interlocutory application should be required to pay the other party's costs, and if so, the extent to which such costs should be awarded. The court considered the success of the party withdrawing the application and the reasonableness of the parties' respective stances.

The court ruled that while an interlocutory application is not a "proceeding" as per Rule 15.23 of the High Court Rules, the rule applies by analogy to withdrawn interlocutory applications. The court found that Northwest was successful with its application for ancillary orders, as the need for the orders was removed once Sanli and the Jung interests consented to the survey plan. However, the Jung interests were not successful with their application for a stay, as the withdrawal of the application was not due to any success in relation to Northwest. The court considered the reasonableness of the parties' stances, concluding that Northwest's application was reasonable, while the Jung interests' stance was not due to their failure to comply with the 5 Owners Agreement.

The court rejected the submission that the Jung interests should be rewarded for withdrawing the stay application, finding that the purpose of the stay application was effectively spent once Sanli consented to the survey plan. The court also dismissed the relevance of the without prejudice communications as true Calderbank offers, as no offer was made which was later vindicated by the quantum of damages. The court ordered the Jung interests to pay Northwest's costs on a 2B basis for the Jung interests' application for a stay, Northwest's application for ancillary orders, and the preparation and hearing of the costs application. The final order required the Jung interests to pay $4,460 in costs and $530.43 in disbursements.

Orders