Overland Development Limited v Dong - [2018] NZHC 2225

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-0290

[2018] NZHC 2225

BETWEEN
OVERLAND DEVELOPMENT LIMITED

Plaintiff

AND

RONGHUAN DONG

Defendant

Hearing: 13 August 2018

Appearances:

B P Rooney for the Plaintiff A Fuiava for the Defendant

Judgment:

28 August 2018

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 28 August 2018 at [ ], pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:
Boon B Toh, Auckland B Rooney, Auckland
Denham Bramwell, Auckland

OVERLAND DEVELOPMENT LTD v DONG [2018] NZHC 2225 [28 August 2018]

[1] The plaintiff (Overland) applies for summary judgment against the defendant (Mrs Dong). Overland says that Mrs Dong breached her obligations under a sale and purchase agreement dated 26 June 2016 (the Agreement), under which Mrs Dong agreed to purchase a section in a subdivision at Codrington Crescent, Mission Bay (the section). Overland seeks by way of summary judgment an order for specific performance directing Mrs Dong to settle the purchase of the section in accordance with the Agreement.

[2] In her notice of opposition, Mrs Dong contends that the area of the section is not what it was represented to her to be. She says that the section should have had an area of 601 square metres, but 145 square metres of that comprises a right-of-way serving other sections in the subdivision.

Background

[3] Mrs Dong is a Chinese citizen who came to New Zealand with her husband in September 2015. She is a Mandarin speaker and she says that she cannot read, write or speak any English. Her affidavits in this proceeding have been translated from the Chinese language.

[4] When they first came to New Zealand, Mrs Dong and her husband lived in a boarding house operated by a real estate agent, Ms Jessica Sun, with whom Mrs Dong developed a friendship. It was Ms Sun who raised with Mrs Dong the possibility that she might buy the section.

The Agreement

[5] The purchase price was $1.26 million, and the deposit $63,000. The area of the section "as shown in preliminary plans" was said to be 601 square metres more or less. The Agreement provided for settlement 5 working days after a search copy of the title to the section was provided to Mrs Dong or her solicitor.

[6] There were numerous conditions in the Agreement, including Auckland Council providing its consent to the subdivision, on terms satisfactory to Overland. There is no issue over any of the conditions; they were all satisfied.

[7] There were two plans attached to the Agreement. One was a "water plan" for the 15-lot subdivision, and the other was the proposed subdivision plan itself. The latter plan contained four tables headed "Memorandum of Easements in Gross", "Existing Easements", "Existing Easements in Gross", and "Memorandum of Easements". The tables were in small print and difficult to read, but it is clear from an enlarged copy of 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.

Keep reading for free

Create a free CaseChat account to read Overland Development Limited v Dong and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NZHC 2225
Decision Date: 28 August 2018

CaseChat Overview and Summary

In this case, Overland Development Limited applied for summary judgment against Ronghuan Dong, seeking an order for specific performance to compel Ms Dong to complete the purchase of a section in a subdivision at Codrington Crescent, Mission Bay. Overland argued that Ms Dong breached the sale and purchase agreement by failing to settle on the agreed date. Ms Dong opposed the application, contending that she was induced to enter into the agreement by misrepresentations made by the developer's agent, Ms Sun, regarding the area of the section and the existence of rights-of-way that affected the buildable area of the section. The court had to decide whether Ms Dong had a defence to the claim and, if so, what the appropriate remedy would be.

The court found that it was reasonably arguable that Ms Dong was induced to enter into the agreement by misrepresentations made by Ms Sun, and that Overland may have been bound by those misrepresentations. However, the court also found that Ms Dong had affirmed the agreement by nominating a third party to complete the settlement, and therefore lost her right to cancel. The court held that Ms Dong did not have an arguable claim for damages or compensation for the alleged misrepresentation, as she failed to follow the procedural requirements set out in the agreement for making such a claim. The court exercised its discretion against granting specific performance at that stage, reserving the question of remedy for a trial limited to the issue of remedy. Overland was awarded costs on the application for summary judgment.

Orders