Northwest Developments Ltd v Zhang - [2018] NZHC 1736

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2625

[2018] NZHC 1736

BETWEEN
NORTHWEST DEVELOPMENTS LTD

Plaintiff

AND

CHENG ZHANG, JIN KUK JUNG and PILL SOON SO

Defendants

Hearing:
23 February 2018

[Further submissions filed 9 March 2018; 16 March 2018;
23 March 2018]

Counsel:

M J Fisher and K J Ng for Plaintiff R M Dillon for Defendants

Judgment:

13 July 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 13 July 2018 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Castle Brown (Auckland) for Plaintiff
Queen City Law (Auckland) for Defendants

NORTHWEST DEVELOPMENTS LTD v ZHANG & ORS [2018] NZHC 1736 [13 July 2018]

Introduction

[1] The plaintiff (“Northwest”) applies for summary judgment against the defendant (“the Jung interests”).

[2] The statement of claim pleads background facts. In summary, Northwest’s case is that it became the owner of a piece of land situated within an area known as the Huapai Triangle. The owners of five areas of land in that area agreed to work together to apply for a variation to the District Plan to enable their land to be subdivided. Their agreement was reduced to writing (“the 5 Owners Agreement”). Northwest, it pleads, became a party to the 5 Owners Agreement when it purchased its land from owners who were signatories to the agreement. The Jung interests also owned one of the pieces of land and they signed the 5 Owners Agreement.

[3] The statement of claim succinctly defines the relevant provisions of the 5 Owners Agreement:

(a)each party granted equitable easements over their respective parcels of land, including for access and roading purposes;

(clauses 14 and 15)

(b)each party agreed to do all things reasonably necessary, in relation to any part of its land required to be vested or dedicated in the Council, to enable such vesting or dedication to occur, in particular in relation to land owned by one party which is required to be vested or dedicated as road to enable Roading to service another party’s land;

(clause 16)

(c)each party agreed:

(i)to assign or transfer its rights and obligations under the 5 Owners Agreement when transferring its land to a successor in title;

(ii)to cause the successor in title to enter into a new agreement with the other parties on the same terms as the 5 Owners Agreement, or a deed of novation, so that the successor in title is bound on the same terms as the transferring/assigning party is bound by the 5 Owners Agreement;

(clauses 58 and 69)

(d)each party agreed to use its reasonable endeavours to obtain its existing mortgagees’ consent and any other security holders’ consent

to, and agreement to the extent necessary to be bound by the terms of, the agreement;

(clause 69)

(e)each party agreed with due diligence to sign all necessary deeds and documents and do everything that is reasonably required to carry out the terms of the…

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 Ltd v Zhang

Details

AGLC: Northwest Developments Ltd v Zhang [2018] NZHC 1736
Case: [2018] NZHC 1736
Decision Date: 13 July 2018

CaseChat Overview and Summary

Northwest Developments Ltd applied for summary judgment against Cheng Zhang, Jin Kuk Jung and Pill Soon So (the Jung interests) in the High Court of New Zealand. The central issue was whether the Jung interests were bound to give effect to certain terms of the 5 Owners Agreement and whether Northwest was entitled to summary judgment. The court found that Northwest was entitled to enforce the 5 Owners Agreement against the Jung interests and that the Jung interests remained liable as a party under the agreement. The court granted Northwest’s application for summary judgment and made declarations and orders by way of specific performance requiring the Jung interests to give their consent to the survey plan, to procure any person with a registered interest in the land to consent to the survey plan, and to take steps to procure the withdrawal of any caveat or other interest if consent should not be immediately forthcoming. The court reserved leave for Northwest to apply for further orders if necessary and stipulated that undue delay in complying with the orders would constitute ground for making any such application. Northwest was also entitled to costs.

Orders