Son v Le - [2023] NZHC 3429

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2022-404-002103

[2023] NZHC 3429

BETWEEN
HIEP XUAN SON

Plaintiff

AND

HAI DAN LE

Defendant

Hearing: 28 September 2023

Appearances:

I M Hutcheson for the Plaintiff No appearance for the Defendant

Judgment:

29 November 2023

JUDGMENT OF TAHANA J

(Formal proof)

This judgment was delivered by me on 29 November 2023 at 2.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Murdoch Price Ltd, Auckland

SON v LE (Formal proof) [2023] NZHC 3429 [29 November 2023]

Introduction

[1] In 2003 Hiep Xuan Son wanted to buy a home. Hai Dan Le, his work colleague and then daughter’s partner, agreed to assist. They borrowed funds in both of their names, and purchased a property at 40 Glenveagh Park Drive, Manurewa (the Property), registering their ownership as a half share each.

[2] Hiep Xuan Son says that he paid all outgoings and expenses related to the Property and Hai Dan Le lived with him and his family rent free. Hiep Xuan Son also says that Hai Dan Le agreed to transfer him his half share, but that Hai Dan Le has not done so in breach of their agreement.

[3] Despite being served with the claim, Hai Dan Le has not taken any steps to defend it. Hiep Xuan Son now applies for his claim to be determined on a formal proof basis.

[4] I therefore need to consider the following issues in determining Hiep Xuan Son’s claim:

(a)Did Hai Dan Le agree to transfer his half share to Hiep Xuan Son?

(b)If yes, is that agreement enforceable?

Background

Purchase of the Property

[5] When Hiep Xuan Son was looking for a home, a real estate agent told him that his income was insufficient to obtain a mortgage and that he would need another income earner to help him obtain a loan. Hai Dan Le is said to have been present during this conversation and offered to help.

[6] Hiep Xuan Son says that he told Hai Dan Le that if he helped him to get a loan then he (Hiep Xuan Son) would pay for everything. Hiep Xuan Son says that Hai Dan Le agreed and confirmed that when Hiep Xuan Son wanted to transfer ownership into his own name (Hiep Xuan Son’s name), Hai Dan Le would do so.

[7] Hiep Xuan Son says that he told Hai Dan Le that he did not need to pay for anything and that he could live in the Property rent free. In return, he says Hai Dan Le agreed he would transfer his share to Hiep Xuan Son when Hiep Xuan Son was in a position for this to occur.

[8]Hiep Xuan Son says he agreed the following with Hai Dan Le:

(a)Hai Dan Le would be a co-borrower to assist Hiep Xuan Son to obtain a bank loan;

(b)Hai Dan Le would be registered as a joint legal…

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 Son v Le

Details

AGLC: Son v Le [2023] NZHC 3429
Case: [2023] NZHC 3429
Decision Date: 29 November 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Hiep Xuan Son brought an action against Hai Dan Le seeking specific performance of an oral agreement regarding the ownership of a property at 40 Glenveagh Park Drive, Manurewa. Hiep Xuan Son claimed that Hai Dan Le agreed to assist him in obtaining a mortgage for the property, and in return, Hai Dan Le would be registered as a joint legal owner with Hiep Xuan Son. Hiep Xuan Son alleged that he would make all payments required to complete the purchase and that Hai Dan Le would transfer his share to Hiep Xuan Son when requested. Hai Dan Le did not defend the claim. The court had to determine whether Hai Dan Le agreed to transfer his half share to Hiep Xuan Son and whether that agreement was enforceable.

The court found that Hiep Xuan Son's evidence established that Hai Dan Le agreed to transfer his share to Hiep Xuan Son. There was no evidence to the contrary, and such an agreement was consistent with Hiep Xuan Son taking responsibility for everything, including repayments for the home loan and payment of all property expenses. The court found that there was consideration for the agreement, as Hai Dan Le was able to live at the property without payment. The court concluded that the agreement was enforceable under the doctrine of part performance. Hiep Xuan Son's conduct of taking full responsibility for the mortgage payments and related outgoings supported the existence of the oral contract and was consistent with the narrative of events as deposed in Hiep Xuan Son's affidavit. The court found that it would be unconscionable for Hai Dan Le to retain his half share, given that he made no financial contribution towards the property, lived in the property for two years for free, and made only a modest weekly contribution since moving to Australia in 2007.

The court ordered that the half share interest of Hai Dan Le in the property at 40 Glenveagh Park Drive, Manurewa be vested in Hiep Xuan Son. The court did not make any orders as to costs as Hiep Xuan Son did not seek costs if successful.

Orders