SM & T Homes Ltd v Nguyen - [2015] NZHC 3228

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001422 [2015] NZHC 3228

BETWEEN
SM & T HOMES LIMITED

Plaintiff

AND

THI KIM CHI NGUYEN AND VINH HGOC NGUYEN

First Defendants

BARFOOT & THOMPSON LIMITED Second Defendant

Hearing: 5-7 and 9 October 2015

Counsel:

S C Dench for the Plaintiff
N C King for the First Defendants
T D Rea and C Jiang for the Second Defendant

Judgment:

15 December 2015

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 15 December 2015 at 4.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: S C Dench, Auckland
N C King, Auckland

Solicitors: J P Campi, Auckland Sinisa Law, Auckland Glaister Ennor, Auckland

SM & T HOMES LTD v NGUYEN [2015] NZHC 3228 [15 December 2015]

Introduction

[1] SM & T was the successful bidder at an auction on 3 December 2014 for the property at 42 Church Street, Otahuhu. The property was “knocked down” to it at a price of $450,000.

[2] Ms Chi Nguyen and Mr Vinh Nguyen are the owners of the property. They deny that there is an enforceable agreement for sale. They did not settle on the appointed date.

[3] SM & T sues for specific performance and interest at the rate provided for in the sale and purchase agreement. In the event SM & T fails on its claim for specific performance, it claims against the second defendant (Barfoot & Thompson) for misrepresentation as to the existence of an enforceable sale and purchase agreement.

[4] Barfoot & Thompson maintains the same position as SM & T on the primary claim, that is, that there is an enforceable sale and purchase agreement for the property. It denies the alternative claims against it, but in the event those claims are successful, it cross-claims against the Nguyens on the basis of estoppel.

[5] The key issue is whether or not there is an enforceable sale and purchase agreement for the property which is capable of being specifically performed.

Background

Parties

[6] SM & T is a family company owned by Mr Steve Piner and Dr Marewa Glover. The purchase of the property at 42 Church Street was to complement the other four properties it owns in Church Street.

[7] Ms Chi Nguyen and Mr Vinh Nguyen are relatives. They are both from

Vietnam and their evidence was given via an interpreter.

[8] Ms Nguyen has lived in New Zealand since September 1999. She lives in the property at 42 Church Street with her children. Ms Nguyen’s partner is Mr Tien Nguyen who also gave evidence at trial through an interpreter.

[9] Mr Vinh Nguyen has resided in New Zealand for the last 31 years. He owns a number of investment properties and is currently involved in a bakery business owned by his wife.

Agency Agreement

[10] In late 2013, Ms Nguyen decided to sell the house at 42 Church Street and was introduced to Mr Ricky Yap,…

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.

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Details

Case: [2015] NZHC 3228
Decision Date: 15 December 2015

CaseChat Overview and Summary

SM & T Homes Limited sued Thi Kim Chi Nguyen and Vinh Hoc Nguyen for specific performance of a sale and purchase agreement for a property at 42 Church Street, Otahuhu. SM & T was the successful bidder at an auction for the property on 3 December 2013, paying $450,000. The Nguyens refused to settle, and SM & T commenced proceedings. The key issue was whether there was a binding contract of sale formed on the fall of the auctioneer’s hammer at the auction. The Nguyens argued that they did not sign a complete contract and were not properly informed of the effect of the documents they did sign. The Court found that the Nguyens had signed the auction conditions and reserve authority with the relevant details included and understood what they were signing. Accordingly, a binding contract of sale was formed on the fall of the auctioneer’s hammer. The contract was enforceable under s 24 of the Property Law Act 2007. The Court exercised its discretion to order specific performance of the contract and dismissed SM & T’s claim for interest.

Orders