Singh v Mao - [2021] NZHC 1959

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-407

[2021] NZHC 1959

BETWEEN
HARGUN SINGH

Plaintiff

AND

XIEYAN MAO

Defendant

Hearing: 9 July 2021

Appearances:

M G Locke for the plaintiff

K Puddle and L Ding for the defendant

Judgment:

30 July 2021

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 30 July 2021 at 4:00pm
pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
Gandhi Lala (Jaswin Gandhi), Royal Oak, Auckland, for the Plaintiff K3 Legal (James Nolen/Kerry Puddle), Auckland, for the Defendant Counsel:
Michael Locke, Auckland, for the Defendant

SINGH v MAO [2021] NZHC 1959 [30 July 2021]

[1] Mr Hargun Singh, the purchaser, sues Ms Xieyan Mao, the vendor, for specific performance of an agreement made on 4 August 2020 to sell a residential property in Te Atatu, Auckland. He has applied for summary judgment.1 Ms Mao sold the property to Mr Singh with vacant possession, but the property was subject to a fixed term tenancy ending on 6 July 2021. Ms Mao insisted that Mr Singh had to take the property subject to the tenancy and would not complete the sale on any other basis. On the settlement date, she issued a settlement notice and later cancelled the agreement, saying that Mr Singh had not tendered settlement. Even though she was told that she was in breach of the agreement in not providing vacant possession, she says that her settlement notice was valid and her cancellation was effective because Mr Singh fumbled in dealing with her breach.

[2] In my judgment, it does not matter that Mr Singh fumbled, because Ms Mao would only settle if Mr Singh paid the full purchase price and took the property subject to the tenancy. She could not insist on settlement on that basis. She will have to complete the agreement with an allowance to Mr Singh because of her breach.

What happened

[3] The Te Atatu property is level, about 800 square metres in area, with a house. It is zoned and suitable for redevelopment. In 2019 Ms Mao obtained resource consent to subdivide the property and build up to seven apartments. In June 2020 she let the property under a residential tenancy agreement for a fixed term from 8 July 2020 to 6 July 2021. On 22 July 2020, she signed a listing agreement with a local real estate agent to sell the property. While the listing agreement records that resource consent has been issued for seven terrace houses, the space for information about any tenancies has been left blank. Ms Mao says, however, that she told the land agents how to contact her property manager for details.

1 There was no dispute as to the approach for plaintiff’s applications for summary judgment under r 12.2 of the High Court Rules 2016.

[4] Mr Singh is a property developer. Ms Mao’s land agents marketed the property “Resource consent…

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 [2021] NZHC 1959
Case: [2021] NZHC 1959
Decision Date: 30 July 2021

CaseChat Overview and Summary

Hargun Singh sued Xieyan Mao for specific performance of an agreement to sell a residential property in Te Atatu, Auckland. Ms Mao had sold the property to Mr Singh with vacant possession, but the property was subject to a fixed term tenancy ending on 6 July 2021. Ms Mao insisted that Mr Singh had to take the property subject to the tenancy and would not complete the sale on any other basis. The court held that Ms Mao would only settle if Mr Singh paid the full purchase price and took the property subject to the tenancy. She could not insist on settlement on that basis and had to complete the agreement with an allowance to Mr Singh because of her breach. The court found that Mr Singh was entitled to specific performance of the agreement of 4 August 2020 for the sale and purchase of the Te Atatu property. Settlement was to be completed on Friday 20 August 2021. The price must still be adjusted in accordance with cl 3.13(2). If the parties cannot agree on the adjustments to be made, they are to follow the procedures under cl 10. Ms Mao is to pay Mr Singh costs of the proceeding.

Orders