Singh v Mao - [2022] NZHC 3046

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-407

[2022] NZHC 3046

BETWEEN
HARGUN SINGH

Plaintiff

AND

XIEYAN MAO

Defendant

Hearing: 10 October 2022

Appearances:

Michael G Locke for the Plaintiff Daniel Zhang for the Defendant

Judgment:

23 November 2022

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR
[Penalty interest and costs]

This judgment was delivered by me on 23 November 2022 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
Gandhi Lala (Jaswin Gandhi), Auckland, for the Plaintiff
Advent Ark Lawyers (Daniel Zhang/Ezra Tie), Auckland, for the Defendant

Counsel:
Michael Locke, Barrister, Auckland, for the Plaintiff

HARGUN SINGH v XIEYAN MAO [2022] NZHC 3046 [22 November 2022]

Introduction

[1] This judgment makes certain orders to implement two judgments of Associate Judge Bell, respectively dated 30 July 2021 and 27 August 2021.1

Background

[2] Hargun Singh was the purchaser, and Xieyan Mao the vendor, of a property at 57 Yeovil Road, Te Atatu Peninsula. Mr Singh sued Ms Mao for specific performance of the relevant sale and purchase agreement. He applied to this Court for summary judgment.

[3] The background was that Ms Mao sold the property to Mr Singh with vacant possession. But the property was in fact subject to a fixed term tenancy ending on 6 July 2021. Ms Mao insisted Mr Singh take the property subject to the tenancy.

[4] On the settlement date, Ms Mao issued a settlement notice. She later cancelled the agreement, saying Mr Singh had not tendered settlement. She said her settlement notice was valid, and her cancellation effective, notwithstanding she had breached the agreement by not providing vacant possession.

[5] In his judgment of 31 July 2021, Associate Judge Bell granted summary judgment and ordered specific performance of the agreement. His Honour determined that Ms Mao was required to complete the agreement, and that an allowance was to be made to Mr Singh because of her breach. He directed settlement to take place on 20 August 2021.

[6] Ms Mao did not settle. She instead appealed to the Court of Appeal and applied to this Court for a stay of execution pending that appeal. Associate Judge Bell allowed the stay in a judgment of 27 August 2021.

1 Singh v Mao [2021] NZHC 1959 [Substantive judgment]; and
Singh v Mao [2021] NZHC 2230 [Stay judgment].

[7] The Court of Appeal heard Ms Mao’s appeal on 18 November 2021. In a judgment of 22 August 2022, it dismissed the appeal.2 It remitted the matter back to this Court for any further orders that may be necessary to ensure the property is transferred in accordance with Associate Judge Bell’s stay judgment.

[8] The parties have been unable to resolve certain matters to give effect to Associate Judge Bell’s substantive and stay judgments. Those matters relate to:

(a)the date of settlement and other matters ancillary to settlement;

(b)the payment of default interest under the sale and purchase agreement; and

(c)costs…

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 Singh v Mao

Details

AGLC: Singh v Mao [2022] NZHC 3046
Case: [2022] NZHC 3046
Decision Date: 23 November 2022

CaseChat Overview and Summary

The case of Singh v Mao involved a dispute between the plaintiff, Hargun Singh, and the defendant, Xieyan Mao, over the sale and purchase of a property at 57 Yeovil Road, Te Atatu Peninsula. The primary legal issues were whether Mr Singh was entitled to penalty interest from Ms Mao for her failure to provide vacant possession on the settlement date, and whether Ms Mao was entitled to penalty interest from Mr Singh for a period following the intended settlement date.

Associate Judge Taylor first considered whether Mr Singh had to complete settlement of the sale and purchase agreement to be entitled to penalty interest. The Court rejected the argument that settlement was a prerequisite for claiming penalty interest, finding that the relevant clause in the agreement did not necessitate settlement for the purchaser to claim interest for late settlement. The Court held that Mr Singh was entitled to penalty interest under the agreement from 16 September 2020 to 30 September 2022.

Next, the Court addressed whether Mr Singh had provided proper notice of his claim for penalty interest in accordance with the agreement. The Court found that the letter sent by Mr Singh’s solicitors on the settlement date was sufficient to comply with the notice requirement. The Court concluded that Mr Singh was entitled to penalty interest, calculated in accordance with the agreement, from 16 September 2020 to 30 September 2022, subject to a credit for interest on the notional deposit.

Finally, the Court considered whether Ms Mao was entitled to penalty interest against Mr Singh for the period from 30 September 2022 to 30 October 2022. The Court found that there was no concluded agreement on the basis upon which settlement would occur on 30 September 2022, and therefore Ms Mao was not entitled to penalty interest for that period.

The Court made orders that Mr Singh was entitled to penalty interest from 16 September 2020 to 30 September 2022, with a credit for interest on the notional deposit. Ms Mao was not entitled to penalty interest from 30 September 2022 to 20 October 2022. The Court also directed the parties to endeavour to agree on the final calculations of the interest amount owing and on costs.

Orders