Northwest Developments Limited v Zhang - [2018] NZHC 298

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-936

[2018] NZHC 298

BETWEEN NORTHWEST DEVELOPMENTS LIMITED
Plaintiff

AND

CHENG ZHANG, JIN KUK JUNG AND PILL SOON SO

Defendants

Hearing: 27 February 2018

Appearances:

M J Fisher for the Plaintiff (to oppose)

T A Hwang for the Defendants (in support)

Judgment:

1 March 2018

JUDGMENT OF WOODHOUSE J

(Application for joinder of third party)

This judgment was delivered by me on 1 March 2018 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Mr M J Fisher and Mr K J Ng, Barristers, Auckland
Mr C Girven (plaintiff’s solicitor), Castle Brown, Solicitors, Auckland
Mr R M Dillon and Ms T A Hwang, Queen City Law, Solicitors, Auckland

NORTHWEST DEVELOPMENTS LTD v ZHANG [2018] NZHC 298 [1 March 2018]

[1] The defendants (Jung) seek leave to join Sanli Homes Ltd and Sanli Group Ltd (Sanli) as third parties. Jung applies, in the alternative, for an order consolidating this proceeding with a proceeding in which Sanli sues Jung for specific performance of an agreement for sale and purchase of land (the Sanli proceeding).1 In the alternative Jung seeks an order for consolidation of this proceeding with the Sanli proceeding. As a further alternative application, Jung seeks an order for stay of the Sanli proceeding.

[2] The formal order sought in Jung’s application is to add Sanli as a second defendant; not the alternative orders referred to above. However, the grounds in support in the application state that Jung wishes “to file a statement of claim against Sanli”, which suggests a third party claim. Jung’s submissions make clear that the principal application by Jung is for leave to issue a third party notice. Leave is required because the notice was not issued within the time limit specified in the rules (as discussed below).

[3] Mr Fisher, for the plaintiff (Northwest), took no issue with the fact that the alternative orders now sought are not expressly sought in the formal application. He addressed the application for leave to issue a third party notice, and the applications for the alternative orders, on their merits. I am satisfied that is the proper approach.

Third party rules

[4] Rules 4.4 and 4.8 of the High Court Rules are the rules of central relevance on this application.

[5]Rule 4.4 relevantly provides as follows:

4.4 Third parties

(1)A defendant may issue a third party notice if the defendant claims any or all of the following:

(a)that the defendant is entitled to a contribution or an indemnity from a person who is not a party to the proceeding (a third party):

1 Sanli Homes Ltd v Jung HC Auckland CIV-2017-404-980.

(b)that the defendant is entitled to relief or a remedy relating to, or connected with, the subject matter of the proceeding from a third party and the relief or remedy is substantially the same as that claimed by the plaintiff against…

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 298
Case: [2018] NZHC 298
Decision Date: 1 March 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Northwest Developments Limited v Zhang involves an application by the defendants, Jung, to join Sanli Homes Ltd and Sanli Group Ltd as third parties. The defendants seek leave to issue a third party notice outside the time limit specified in the High Court Rules. The primary legal issue is whether the court should exercise its discretion to allow the defendants to join the third parties despite the delay, considering factors such as the relevance of the third parties' claims, the overlap in issues, and the potential for achieving justice efficiently.

The court considered that Jung's claim for an indemnity from Sanli satisfies one of the grounds for joining a third party under rule 4.4(1)(a). The court acknowledged the potential overlap in issues between the current proceeding and a separate proceeding where Sanli is suing Jung for specific performance. The court concluded that justice would be best served by having all parties involved in one proceeding to avoid conflicting judgments and duplication. The court also noted that the delay was adequately explained and not unreasonable, given the circumstances.

Therefore, the court granted leave for the defendants to issue a third party notice to Sanli Homes Ltd and Sanli Group Ltd, requiring the filing and service of necessary documents within specified timeframes. The court further directed that a case management conference be held to coordinate the proceedings. The defendants are entitled to costs for the hearing, subject to determination of the quantum by the Registrar.

Orders