RANFURLY JIXIANG DEVELOPMENT LIMITED AND GWT NEW ZEALAND LIMITED LEI WANG

[2024] NZHC 2939

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-409

[2024] NZHC 2939

BETWEEN

RANFURLY JIXIANG DEVELOPMENT LIMITED
Plaintiff

AND

GWT NEW ZEALAND LIMITED

First Defendant

LEI WANG

Second Defendant

Hearing:	26 August 2024
Appearances:	Cora Morrison for the Plaintiff D B Hickson for the Defendants
Judgment:	10 October 2024

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application for summary judgment]

This judgment was delivered by me on 10 October 2024 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:

Buddle Findlay, Auckland, for the Plaintiff D B Hickson, Auckland, for the Defendants

RANFURLY JIXIANG DEVELOPMENT LIMITED v GWT NEW ZEALAND LIMITED [2024] NZHC 2939

[10 October 2024]

Introduction

[1]    Ranfurly Jixiang Development Limited (Ranfurly) seeks summary judgment against the defendants, GWT NZ Limited (GWT) and Lei Wang (Ms Wang). The defendants oppose the application but only in respect of the loss claimed.

Background

[2]On 2 September 2020, Ranfurly purchased 87 Ranfurly Road, Epsom (the

Property) to develop and subdivide into units for sale.

[3]    On 12 October 2021, Ranfurly as vendor and GWT as purchaser entered into two unconditional sale and purchase agreements for lots 21 and 22 on the Property, respectively (the Agreements). Ms Wang provided personal guarantees in relation to GWT’s obligations to Ranfurly under the Agreements.

[4]    On 14 October 2021, GWT paid the deposits for both lots as required under the Agreement. The Agreements became unconditional on 2 September 2022.

[5]    On 11 April 2023, new titles were issued for lots 21 and 22 at the following street addresses:

(a)lot 21: 8/87 Ranfurly Road, Epsom, Auckland (Unit 8); and

(b)lot 22: 9/89 Ranfurly Road, Epsom, Auckland (Unit 9).

[6]    Following the issue of new titles, Ranfurly notified GWT that the settlement date would be 10 May 2023. GWT failed to settle on the settlement date.

[7]    On 11 May 2023, Ranfurly served settlement notices on GWT, requiring settlement within 12 working days.

[8]    On 29 May 2023, the settlement notices expired unremedied and GWT remained in default.

[9]    On 2 June 2023, Ranfurly cancelled the Agreements and retained the deposits paid by GWT.

[10]   In July 2023, Ranfurly commenced resale efforts. The property market in Auckland had significantly declined between the date of the Agreements and the date of the breach. Ranfurly subsequently entered into resale agreements which settled on 26 January 2024.

[11]   Ranfurly claims it suffered losses of $1,124,246.41 as a result of GWT’s breach of the Agreements and that Ms Wang is jointly and severally liable with GWT for the loss suffered by Ranfurly. However, GWT claims Ranfurly failed to mitigate its losses after cancelling the Agreements.

Ranfurly’s application for summary judgment

[12]   Ranfurly seeks summary judgment to be granted in its favour for the claimed losses it suffered.1

[13]The grounds on which the order is sought are, in summary:2

(a)     The Agreements became unconditional on 2 September 2022. Pursuant to the terms of the Agreements, GWT was required to settle its purchase of the Properties on  10  May  2023  (Settlement Date).

(b)    GWT failed to settle its purchase of the Properties on the Settlement Date in breach of the Agreements. On 2 June 2023, in reliance on the breach, Ranfurly cancelled the Agreements.

1 Interlocutory application for summary judgment dated 27 February 2024 at [1].

2 At [2].

(c)     On 31 October 2023, Ranfurly re-sold the Properties for lower prices, incurred further liabilities and suffered loss in the amount of

$1,124,246.41 as set out in the statement of claim.

(d)    GWT as defaulting purchaser and Ms Wang as GWT's guarantor are liable for Ranfurly’s loss.

(e)      The defendants have no defences to Ranfurly’s causes of action in its statement of claim dated 27 February 2024.

The defendants’ opposition

[14]   The defendants opposes the application on, in summary, the following grounds:3

(a)Ranfurly failed to mitigate its losses after cancelling the Agreements. Specifically, on or about 30 July 2023, Ranfurly offered each of the Properties for sale for more than $500,000.00 less than the defendants had agreed to pay (a total reduction in the purchase price for both Properties of more than $1million), without first even listing the Properties with a real estate agent for resale or undertaking any marketing or advertising on the resale.

(b)On or about 8 August 2023, Ranfurly entered into listing agreements for the Properties with Ling Zhu of Barfoot & Thompson Limited, (the Listing Agreements), but did not agree in the Listing Agreements to pay Barfoot & Thompson any money for advertising.

(c)Consistent with the Listing Agreements, Barfoot & Thompson would appear to have undertaken no advertising or marketing for the Properties as no evidence of any advertising or marketing has been adduced by Ranfurly.

3 Notice of opposition of defendants to interlocutory application by the plaintiff for summary judgment dated 3 April 2024 at [3].

(d)The original resale agreements were terminated in or about September 2023 and the Listing Agreements with Barfoot & Thompson expired on 9 September 2023. Subsequently, Ranfurly failed to list the Properties for sale with any other real estate agent or undertake any advertising or marketing of the Properties before entering into the final resale agreements on 31 October 2023.

(e)Ranfurly would appear to have effected resales of the Properties to companies owned by relations of the director of Ranfurly which, in itself, gives rise to the probability that the sales have been effected at an undervalue.

(f)No evidence has been adduced by Ranfurly of alleged losses on the resale amounting to more than $77,000, namely:

(i)the real estate agents’ commission on the Agreements which allegedly totalled $65,434.78;

(ii)the legal costs of $10,705.01 allegedly incurred on the sales under the Agreements; and

(iii)the alleged Resident Society levy of $1,236.05 beyond the amount of the $710 that would have been payable by the defendants had they settled the Agreements on 10 May 2023.

(g)Ranfurly needlessly incurred costs of more than $68,000 on earthworks, foundations and drainage on the Properties and has adduced no evidence beyond bold assertions from its director that such work was necessary to facilitate the resales, (the Site Works).

(h)Rather than help minimize the losses of Ranfurly, the Site Works benefited the family members and family interests associated with a director of Ranfurly.

Legal principles

[15]Rule 12.2(1) of the High Court Rules 2016 provides:

12.2 Judgment when there is no defence or when no cause of action can succeed.

(1)The court may give judgment against a defendant if the plaintiff  satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.

[16]   The relevant principles governing a summary judgment application are well established:4

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: Pemberton v Chappell. 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: MacLean v Stewart. 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: Eng Mee Yong v Letchumanan. In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel.

[17]The wording of r 12.2 “may give judgment” indicates a residual discretion.

Having regard to the various authorities, the position appears to be as follows:5

(a)The discretion implied by the use of the word “may” is to be restrictively applied. In a great majority of cases, once the court is satisfied the defendant has no defence, there is no room for the exercise of discretion.

(b)The residual discretion may be invoked to avoid oppression or injustice to the defendant where:

(i)The proceeding involves the actions or possible liability of a third party which is not before the court;

4      Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26] (citations omitted).

5      Andrew Beck and others (eds) McGechan on Procedure (online ed, Thomson Reuters) at [HR12.2.11].

(ii)The proceedings are such that the opportunity should be given to allow discovery or other interlocutory applications to be concluded;

(iii)The circumstances of the case disclose very unusual features, the presence of which leads the court to conclude that the entry of summary judgment would be oppressive or unjust; or

(iv)The combination of complex issues of fact and law justify the dismissal of the application for summary judgment, either as a matter of discretion or because the court cannot be satisfied that the defendant has no defence.

(c)Even where the court is not satisfied that a defence has been made out, in exceptional circumstances the application may be adjourned to allow for other processes to be followed.

Analysis

[18]   The issue to be determined in this judgment is whether the defendants have a reasonably arguable defence to Ranfurly’s claim for loss so that summary judgment in Ranfurly’s favour should not be given. The defences raised by the defendants are that Ranfurly failed to mitigate its loss because:

(a)it failed to act reasonably on the resale; and

(b)the resale was not a bona fide arm’s length sale.

Did Ranfurly act reasonably on the resale?

[19]   Ms Morrison, for Ranfurly, commences her submissions by setting out what she asserts arethe well settled principles applicable to cl 11.4(3) in the Agreements:

(a)The requirement that the resale be ‘bona fide’ calls for the consideration whether the vendor has acted reasonably on the resale, rather than hindsight criticism of particular aspects undertaken, referencing the authorities Tucker v Sun6 and Masterton Investments Ltd v Watson.7

6      Tucker v Sun (2009) 10 NZCPR 542 (HC) at [48](c).

7      Masterton Investments Ltd v Watson [2022] NZHC 3113, (2022) 23 NZCPR 856 at [83].

(b)The duty to act reasonably to mitigate loss generally requires the vendor to offer the land for resale at a proper price having regard to the state of the market, to take adequate steps to advertise and promote the sale, and to keep the property in reasonable order and condition so as to encourage a sale, referring to the authority of Sullivan v Darkin.8

(c)The standard expected of a vendor when reselling a property is not high, given it is the purchaser that is the wrongdoer, and requires an overall view of the matter, referencing the authorities of Masterton Investments Ltd v Watson9 and Banco de Portugal v Waterlow & Sons Ltd.10

(d)The vendor’s circumstances following the purchaser’s default, and any urgency to resell, are relevant considerations towards any assessment of reasonableness, referencing the authority of Sullivan v Darkin.

[20]   Ms Morrison submits the onus is on the purchaser to prove that the vendor did not act reasonably during the resale process or that the resale was not bona fide. She notes that if the vendor’s claim is challenged that all reasonable steps have been taken to mitigate loss, then it is a significant onus to discharge. She references the authorities of Tucker v Sun11 and NZ Tourist Investments Ltd v Vast Investment Ltd.12

[21]   Ms Morrison submits that sale at an undervalue is not the test as the vendor in the situation is forced to resell because of the purchaser’s failure to perform its contractual obligations. She submits that criticisms of particular aspects of a resale process based on hindsight, in support of a purchaser’s defence of a failure to mitigate loss, is generally insufficient to support a finding of unreasonable conduct by the vendor, referencing NZ Tourist Investments Ltd v Vast Investment Ltd.13

8      Sullivan v Darkin [1986] 1 NZLR 214 (CA) at 217–218.

9      Masterton Investments Ltd v Watson, above n 7.

10     Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452 (HL) at 506.

11     Tucker v Sun, above n 6.

12     NZ Tourist Investments Ltd v Vast Investment Ltd [2023] NZHC 3735 at [22].

13     At [25] and [35].

[22]   Applying these principles to the present case, Ms Morrison submits that Ranfurly took all reasonable steps to mitigate its losses. She describes the steps taken by Ranfurly to market the properties, and the issues arising, as follows:

(a)Ranfurly initially sought interest from potential buyers through its own network of real estate agents for Units 8 and 9 at a price of $1.56 million (inclusive of GST) following consultation with agents.  There were  19 inquiries from potential buyers received through their agents between 30 July 2023 and 18 August 2023. The offers received ranged between $1.38 million (including GST) and $1.403  million  (including GST) for each of Units 8 and 9. However, these were too low for Ranfurly to accept.

(b)In addition to marketing the Properties through its own network of agents, Ranfurly engaged Ms Zhu of Barfoot & Thompson as a general agent, who appraised Units 8 and 9 at a value of $1.46 million (including GST). Offers procured by Ms Zhu in September 2023 for Units 8 and 9 of $1.42 million (including GST) and $1.40 million (including GST) points to the perceived value of Units 8 and 9 by the market. Ranfurly, through negotiation with the potential purchasers, was able to increase the purchase prices to $1.475 million (including GST), however these Agreements were ultimately cancelled.

(c)Following cancellation of the initial resale agreements, Ranfurly was able to achieve higher prices for Units 8 and 9 with the final resale agreements being prices of $1.575 million (including GST) for Unit 8 and $1.585 million (including GST) for Unit 9 respectively. Ranfurly says that these figures were only achieved following extensive negotiations.

(d)In respect of the Site Works, Ranfurly has provided evidence of potential purchasers requiring the Site Works to be completed at Ranfurly’s cost as a condition of the offers received for Units 8 and 9. In the circumstances, Ranfurly, by electing to carry out the Site Works

to encourage potential purchasers to make higher offers, acted reasonably to encourage a sale.

(e)Ranfurly says that the Site Works were necessary to enable a sale of Units 8 and 9 to occur. In such circumstances, the cost incurred by Ranfurly in carrying out the Site Works is not excessive, but rather necessary to enable the ultimate resale agreements to be entered into.

[23]   Mr Hickson, for the defendants, points to the following failures by Ranfurly in the steps taken during the resale process, which he submits means that Ranfurly did not act reasonably in relation to the resale. He raises the following issues with Ranfurly’s resale process, each of which I deal with in turn:

(a)There was an immediate $500,000 drop in price of the Properties.

(b)There was no advertising or marketing budget for sale of the Properties.

(c)There were no new listing agreements entered into when the Listing Agreements expired.

(d)The sales not being bona fide arm’s length sales.

(e)The Site Works were unnecessary and designed to benefit the family members associated with Mr Lin that were purchasing the Properties.

(f)Mr Lin’s evidence’s is not credible.

Immediate $500,000 drop in price

[24]   Mr Hickson submits that Ranfurly dropped the asking price for each Property by more than $500,000 at the very outset of the resale process prior to any investigation or assessment of the current market value. He points to emails which Ranfurly has adduced in evidence between Scott Point Marina, a development firm owned by a director of Ranfurly, Mr Han, and a number of real estate agents. In particular, he points to the promotional email from Scott Point Marina dated

30 July 2023 promoting the resale of the two lots after the original agreements had failed to settle. Mr Hickson highlights that after mis-stating the original sale price, the email states that the price on resale is now $1,356,500 plus GST, which is an immediate drop in price of more than $500,000 for each Property. Mr Hickson submits this amounted to an announcement that the Properties were being sold in a “fire sale” situation.

[25]   Mr Hickson submits that the defendants accept that the real estate market had dropped since September 2020 when they entered into the original Agreements and July 2023 when the resale was undertaken. However, he notes that Ranfurly had presented no documentary evidence of any valuations having been obtained or any other investigations as to the market price of the Properties having been made before the announcement in July 2023 of effectively a $1 million drop in the price of the two Properties.

[26]   Mr Hickson submits that a more appropriate course for Ranfurly, or its agents at Scott Point Marina, to have adopted would have been to send out a promotional email encouraging feedback from real estate agents as to where they saw the market price currently valued at rather than just reducing the price for each Property by

$500,000 without first making proper enquiry as to the current market price.

[27]   On this point, Mr Hickson also challenges the evidence of Mr Lin in his reply affidavit14 where Mr Lin states “as soon as the defendants defaulted on the Agreements, we immediately contacted real estate agents to discuss potential sale prices, market expectations and marketing and commission”.

[28]   Mr Hickson submits that this statement is contrary to all the documentary evidence. He submits that Ranfurly’s first contact with real estate agents was in fact the promotional email sent by Scott Point Marina on 30 July 2023 in which no enquiry was made as to potential sale prices, market expectations, marketing or commissions.

14     Reply affidavit of Mr Junhua Lin dated 9 May 2024.

No advertising or marketing budget

[29]   Mr Hickson refers to the Listing Agreements entered into between Ranfurly and Barfoot & Thompson on 8 August 2023. He points to the fact that neither Listing Agreements contained any marketing budget to cover promotional costs for advertising and in both Listing Agreements the relevant provisions are deleted. He submits the fact that there was no marketing or advertising of the Properties undertaken is confirmed by the absence of any marketing or advertising evidence in Ranfurly’s evidence in support of its summary judgment application.

[30]   In relation to Mr Lin’s response to the allegations that Ranfurly failed to properly advertise the Properties to the effect that Ranfurly engaged in “private” advertising and marketing across “multiple channels”, Mr Hickson submits that it must be the essence of marketing and advertising that it is conducted publicly and not privately, and the sale is to be brought to the attention of the largest possible market. He is also sceptical of Mr Lin’s explanation that the real estate agent, Ms Zhu, crossed out the promotional authority provision in the Listing Agreements herself, without his knowledge. He submits that it would be illogical for a real estate agent to do this to deny themselves of a budget to market and advertise the Properties and reduce their prospects of achieving a sale and obtaining their commission. He also notes that no evidence from Ms Zhu herself has been tendered on this issue.

[31]   Mr Hickson also points to the decision of Mana v Fleming15 which considered the issue of “covert marketing” and submits that, while the case was decided on different facts, it resulted in a ruling that the party who pursued this course had failed to comply with what was, in that case, their contractual obligation to use all objectively reasonable means to obtain an unconditional sale contract for their property.

No new listing agreements entered into

[32]   Mr Hickson points to the fact that no new listing agreements were entered into after  two  conditional  sales  for  Unit  9  (on  5  September  2023)  and  Unit  8    (on 11 September 2023), both of which failed to proceed. He points to the fact that

15     Mana v Fleming (2006) 7 NZCPR 663 at 668–689.

both Listing Agreements came to an end on 20 September 2023 and that no further listing agreements were entered into.

Were the sales bona fide, arm’s length sales?

[33]   Mr Hickson submits that there are circumstances which suggest there was a family link between the purchasers of Units 8 and 9 and Mr Lin of Ranfurly. Mr Lin, in his evidence, denies any familial link between the purchasers of Units 8 and 9 and himself.

[34]   Mr Hickson raises the following concerns in relation to his point that there were links between Mr Lin of Ranfurly and the purchasers of Units 8 and 9:

(a)No fewer than four different individuals associated with the four agreements for sale and purchase entered into for Units 8 and 9 bore the same surname as Mr Lin. The individuals involved were:

(i)Wen-Jin Lin who signed as conditional purchaser of Unit 9 on 5 September 2023;

(ii)Xueyan Lin who is the  sole  director  and  shareholder  of  JKC Investment  Limited,  which   purchased   Unit   8   on   31 October 2023;

(iii)You Gui Lin who is the sole director and 50 per cent shareholder of Black and White Homes Limited, which purchased Unit 9 on 31 October 2023; and

(iv)Xiaojie Lin who is the other 50 per cent shareholder of Black and White Homes Limited.

(b)You Gui Lin also personally guaranteed the obligations of Black and White Limited, pursuant to the agreement for sale and purchase of Unit 9.

[35]   Mr Hickson submits that concerns regarding the bona fides of the various purchasers is amplified by the fact that no listing agreement was in place when the sales were made to these purchasers. He also submits there is plainly a close association between JKC Investment Limited and Black and White Homes Limited, in circumstances where both companies:

(a)share the same address  for  service  and  registered  office,  namely, 24 Tims Crescent, Flat Bush; and

(b)entered into their respective agreements for sale and purchase for Units 8 and 9 on the same day, 31 October 2023.

[36]   Mr Hickson submits that it is not unreasonable for the defendants to have concerns about:

(a)a possible familial connection between Mr Lin and the purchasers, and their concerns are not allayed by a bare denial from Mr Lin; and

(b)the close association between the ultimate purchasers of Units 8 and 9, JKC Investment Limited and Black and White Home Limited.

[37]   Mr Hickson submits that concerns about the bona fides of the sale and the potential family connection between Mr Lin and the purchasers are exacerbated by the fact that there is no evidence that the purchasers were introduced to Ranfurly by any of the real estate agents to whom Ranfurly circulated their promotional email to on 30 July 2023. He points to the fact that under the ultimate sale agreements, the deposits were payable to the vendor’s solicitor’s trust account rather than to the account of the real estate agent with the listings, Barfoot & Thompson.

[38]   In response to these allegations, Ms Morrison submits that Mr Lin has confirmed he does not know of any association between the purchasers of the Properties under the resale, he does not know any of the persons involved in the resale agreements personally and does not have any familial connections with them. She submits that there is no evidence to support the defendants’ claims of connections

between Mr Lin and the parties associated with the various purchasers. She submits that only tenuous connections have been drawn on the basis of surnames without anything more. Accordingly, she submits that the defendants have failed to discharge the significant evidential onus of establishing mala fides on the part of Ranfurly in relation to the resales.

Site Works

[39]   Mr Hickson submits that the issue is not whether the cost of the Site Works was excessive, but whether the Site Works needed to be carried out at all for the purpose of achieving a resale of the Properties. Ms Morrison refers to further conditions inserted by the purchasers in the agreement for sale and purchase of Units

8 and 9 as evidence that additional cost of the Site Works including building foundations and associated costs of surveying, drainage, earthworks and site inspection were all necessary in order to achieve a resale of the Properties.

[40]   Mr Hickson submits that this explanation is only acceptable if there is no familial connection between Mr Lin and the directors and/or shareholders of the purchasers. Until that matter is tested at trial, there remains a suspicion that the Site Works were undertaken for the benefit of family members with the knowledge that the cost of the Site Works could be claimed back from the defendants in these proceedings.

Credibility of Mr Lin

[41]   Mr Hickson submits that the matter needs to proceed to trial as there are issues as to the credibility of evidence given by Mr Lin. He points to the following examples:

(a)The claim by Mr Lin, contrary to documentary evidence, that Ranfurly discussed potential sale prices, market expectations, marketing and commissions with real estate agents before putting the Properties on the market. This is inconsistent with the Scott Point Marina promotional email of 30 July 2023 which makes no mention of these matters beyond announcing the price drop, and neither do any of the responses received from agents deal with how the price meets market expectations.

(b)The highly improbable claim that the real estate agent for the sale of Units 8 and 9 deleted the promotional authority provision in the Listing Agreements.

(c)The flat denial of any familial link with four other persons with the same surname but associated with the purchase or attempted purchase of Units 8 and 9.

Result

[42]   I am of the view that Ranfurly’s application for summary judgment for damages of $1,124,246.41 should be dismissed. In my view, the defendants have raised an arguable defence as to whether Ranfurly acted reasonably on the resales, and as to whether the ultimate resales were bona fide. It is accepted that the sale at an under-value is not the test and hindsight criticism of particular aspects of the sale is not sufficient to support a finding that the vendor has not acted reasonably. However, in the present instance, there are sufficient issues regarding the sale process which have been raised by the defendants that require investigation at trial.

[43]The reasons for my view are:

(a)While Mr Lin claimed there were proper discussions with real estate agents regarding the sale prices, market expectations, marketing and commissions before the Properties were put on the market, this appears contrary to the documentary evidence based on the Scott Point Marina email of 30 July 2023. On the face of it, at the outset of the sale proceeds, the purchase price appears to have been reduced by $500,000 in respect of each unit without adequate canvassing of the market price.

(b)The Listing Agreements contained no advertising or promotional budgets, and no evidence has been presented by Ranfurly of any public advertising or promotion of the Properties at any time. They appear to have been only marketed through a network of agents known to Ranfurly, without necessarily achieving the degree of public exposure

of the Properties which would be expected to ensure the best price reasonably obtainable was actually obtained on the resales. Some evidence of Mr Lin requires testing, including his suggestion that the details of the advertising budget was deleted by the agent without his knowledge, which seems contrary to normal expectations of the manner in which a real estate agent would proceed to market the Properties.

(c)While any links between Mr Lin of Ranfurly and individuals associated with the attempted purchases and actual purchases of Units 8 and 9 having the same surname are denied by Mr Lin and may be tenuous, coupled with other issues referred to by Mr Hickson, the bona fides of the sales requires an investigation. In particular, there is no evidence that the attempted resale purchasers and the actual resale purchasers associated the various individuals with the “Lin” surname were introduced to Ranfurly through real estate agents (there being no listing agreements in place at this time). The sales appear to be private sales, with deposits being paid through solicitors’ trust accounts rather than through real estate agents.

(d)The evidence of the conditions in the resale agreements requiring Site Works and additional costs involved is only convincing evidence that the Site Works were necessary to achieve the resales if these sales were in fact bona fide arm’s length sales.

[44]   In conclusion, the Court cannot be satisfied that the defence put forward by the defendants that Ranfurly failed to mitigate its loss and did not act reasonably on the resale, is not reasonably arguable. Accordingly, summary judgment should not be given.

Orders

[45]I make the following orders:

(a)Ranfurly’s application for summary judgment for the loss of

$1,124,246.41 is dismissed.

(b)As the defendants are the successful party, costs should follow the event. Counsel are directed to endeavour to agree costs and failing agreement being reached within a period of 20 working days from the date of this judgment, counsel for the defendants will file a memorandum as to costs (not to exceed five pages) within 5 working days after the expiry of the 20 working day period, and counsel for Ranfurly will file a memorandum (not to exceed five pages) in response within 5 working days of receipt of counsel for the defendants’ memorandum. A decision as to costs will then be made on the papers.

…………………………….. Associate Judge Taylor