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Sutich v Granich

Sutich v Granich

Case [2022] NZHC 698 6 April 2022

Admissibility of Evidence

Property Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-00007/8 [2022] NZHC 698

UNDER the Land Transfer Act 2017

BETWEEN

IGOR GEORGE SUTICH

Applicant

AND

TERENCE JAMES GRANICH

Respondent

Hearing: 17 March 2022

Appearances:

K J Crossland for the Applicant T Allan for the Respondent

Judgment:

6 April 2022

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 6 April 2022 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Shieff Angland, Auckland McElroys, Auckland

SUTICH v GRANICH [2022] NZHC 698 [6 April 2022]

Introduction

[1] Mr Sutich attended the public auction of a residential property at 38 Hattaway Avenue, Bucklands Beach owned by Mr Granich on 8 December 2021. The property was passed in; but Mr Sutich claims that he reached a binding agreement with Mr Granich shortly afterwards to buy the property for $1.85 million. Mr Granich denies that they reached a binding agreement. He has signed a contract to sell the property to another individual, with settlement on 7 April 2022.

[2] Mr Sutich claims a right to specific performance of his claimed contract with Mr Granich. He lodged a caveat against the title of the property.1 Mr Granich applied to the Registrar-General of Land for the caveat to lapse. Mr Sutich applies to this Court for an order that the caveat not lapse. Mr Granich opposes the application.

[3] Mr Sutich must demonstrate that he has a reasonably arguable case for an interest in the property sufficient to support the caveat. Mr Sutich makes two arguments. First, he claims he made an oral agreement with Mr Granich through Mr Granich’s real estate agent shortly after the auction ended. He says that this oral agreement was recorded in a partly signed written agreement that night. Further, he sought to partly perform this agreement by paying the deposit. Second, Mr Sutich contends that Mr Granich is estopped from refusing to sign the written agreement under the doctrine of equitable estoppel because the real estate agent represented to him that they “had a deal”.

[4] Mr Granich rejects that any oral agreement was reached on the night of the auction, maintaining that only Mr Granich, or the auctioneer, could reach a binding agreement to sell the property under auction. Further, when the real estate agent presented an unsigned agreement to Mr Sutich on the night after the auction, and again the following morning, it was an “invitation to treat” and not binding on Mr Granich. Mr Granich denies that the elements for equitable estoppel are made out, especially as it was made clear to Mr Sutich that there was no binding agreement until a written sale and purchase agreement was signed by both parties.

1 Caveat 12331680.1 against record of title NA57C/609.

[5] To decide whether Mr Sutich has demonstrated a reasonable argument to support the caveat, I must consider these issues:

(a)Was a binding contract formed?

(b)If so, is…

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 Sutich v Granich

Details

AGLC: Sutich v Granich [2022] NZHC 698
Case: [2022] NZHC 698
Decision Date: 6 April 2022

CaseChat Overview and Summary

In the case of Sutich v Granich, Mr Sutich sought to sustain a caveat over a property owned by Mr Granich, claiming that he had a binding oral agreement with Mr Granich to purchase the property for $1.85 million. Mr Granich denied that any binding agreement was reached and had signed a contract to sell the property to another individual. The court was required to decide whether Mr Sutich had a reasonably arguable case for an equitable interest in the property sufficient to support the caveat. The court considered whether a binding contract was formed, whether the contract was enforceable, whether the doctrine of part-performance applied, and whether Mr Granich was estopped from refusing to sign the contract. The court found that no binding contract was formed and that the other arguments advanced by Mr Sutich also failed. The court ordered that the caveat lapse and that Mr Sutich pay Mr Granich's costs.

The court's analysis focused on the nature of the auction process and the role of the auctioneer. The court found that there was no evidence that the auctioneer had accepted an offer from Mr Sutich at or above the reserve over the next working day, as required by section 36ZA of the Fair Trading Act 1986. The court also found that Mr Sutich's claim of a binding oral agreement failed because there was no evidence that the real estate agents had express authority to bind Mr Granich to a contract for sale of the property. The court further found that the doctrine of part-performance did not apply because there was no binding contract. Finally, the court found that Mr Granich was not estopped from refusing to sign the contract because Mr Sutich's belief that he had a binding agreement was not reasonable and he had not suffered any detriment.

Orders