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Rozee v Zhang

Rozee v Zhang

Case [2019] NZHC 2165 30 August 2019

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000341

[2019] NZHC 2165

BETWEEN ROBERT WILLIAM ROZEE, BLAIN MORGAN WALLACE CRIGHTON, ELIZABETH ALICE SAWERS, AARON O’BRIEN, PAG PROPERTY HOLDINGS LIMITED and RICHARD NOEL SAWERS
Plaintiffs

AND

DONGGEE ZHANG

First Defendant

AND

TRI POWER LIMITED

Second Defendant

Hearing: 22 August 2019

Appearances:

T Grimwood for the Plaintiffs

No appearance for the First Defendant and Second Defendant

Judgment:

30 August 2019

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me at 4.00 pm on 30 August 2019 pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:
Anthony Harper, Christchurch

ROZEE v ZHANG [2019] NZHC 2165 [30 August 2019]

Introduction

[1] The plaintiffs, who are six of eight co-owners of a cross-lease development, apply by way of summary judgment for an order for the sale of the property and division of the proceeds of sale, under s 339(1)(a) Property Law Act 2007. The remaining two co-owners are the first and second defendants.

[2] The first defendant has been opposed to the sale of the property. She agreed to accept service by email but has not filed any opposition to the application for summary judgment.1 After service, the first defendant sent, by email, to the plaintiffs’ solicitors what purports to be a statement of defence. That document was not filed with the court. I refer to the document as the statement of defence, but it has no status as such.

[3] The second defendant was initially opposed to the sale of the property but does not now oppose the plaintiffs’ application.

[4] Whilst the application is effectively unopposed,2 I am required to be satisfied that the plaintiffs have discharged their obligation to show that the first defendant has no arguable defence to the claim.

The background

[5] Each co-owner (apart from Richard Sawyers and Aaron O’Brien) owns, as a tenant in common, a one-tenth share of the property at 24 London Street, Richmond, Christchurch (Lot 2 Deposited Plan 21043, Canterbury District Identifier CB18A/1432), and has a lease for a term of 999 years from 4 October 1977 of one flat and one carport (Memorandum of Lease 154927). Messrs Sawyer and O’Brien each own two-tenths shares and lease two flats and carports.

1 Rule 6.7 High Court Rules. After the application and supporting documents were sent to the plaintiff she acknowledged, by email, receipt of them to the plaintiffs’ lawyers. She then sent to the plaintiffs’ lawyers a statement of defence. She was served with the plaintiff’s amended statement of claim by email on 7 August 2019 and emailed the plaintiffs’ solicitors from her email address later that same day about the proceeding.
2 As no papers have been filed with the court in opposition to it.

[6] The first defendant is Chinese and is presently in China. She acquired her interest in the property in February 2016 as a residence while her son is being educated in Christchurch.

[7]The relevant…

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 Rozee v Zhang

Details

AGLC: Rozee v Zhang [2019] NZHC 2165
Case: [2019] NZHC 2165
Decision Date: 30 August 2019

CaseChat Overview and Summary

In the High Court of New Zealand, a group of co-owners of a cross-lease development in Christchurch applied for summary judgment to order the sale of the property and division of the proceeds. The first defendant, who holds a one-tenth share in the property, was opposed to the sale, while the second defendant initially opposed the sale but later withdrew their opposition. The court had to decide whether the first defendant had any arguable defence to the claim and whether the plaintiffs had discharged their obligation to show that she had none.

The court found that the first defendant had no defence to the claim, as she had not provided any evidence to support her opposition to the sale. The court considered the relevant considerations under the Property Law Act 2007 and concluded that the sale was necessary to prevent further damage to the property, which had suffered extensive earthquake damage, and to provide a fair outcome for all co-owners. The court also found that the first defendant's opposition to the sale was unrealistic, as she had no proposal to repair or rebuild the property and her stance that she would occupy her flat for a further four years, regardless of the state of the property and the contrary interests of her co-owners, was entirely unrealistic.

The court ordered the sale of the property and division of the proceeds among the co-owners, with the first named plaintiff authorised to sign all documents necessary to effect the sale. The court also ordered that the sale price was to be no less than $1,080,000, each co-owner's liability under an Agreement for Sale and Purchase was limited to any default by them in respect of their unit, and the sale proceeds would be distributed to the registered co-owners after deducting any amounts legally required to be paid in connection with the sale of the Property, discharging all mortgages over the Property, and paying or reimbursing costs and expenses reasonably incurred in connection with the sale of the Property.

The court awarded costs to the plaintiffs and against the first defendant in the sum of $9,191.50 plus disbursements of $730. The court declined to make an order for the deduction of the plaintiffs' costs from the first defendant's share of the sale proceeds, as the plaintiffs had provided no authority for the making of such an order.

Orders