Sutton v Van der AA - [2017] NZHC 3006

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-A-KAHU

CIV-2017-463-000032 [2017] NZHC 3006

BETWEEN
GUY SUTTON

Plaintiff

AND

MARIA JOSEPHINE VAN DER AA Defendant

Hearing: 2 August 2017

Appearances:

K I Bond for the Plaintiff
S McKenna for the Defendant

Judgment:

7 December 2017

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 7 December 2017 at 10.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Whitfield Braun Limited, Hamilton

SUTTON v VAN DER AA [2017] NZHC 3006 [7 December 2017]

Grantham Law, Hamilton

Introduction

[1] At the heart of this dispute is the property at 44 Kutai Street, Turangi. The property is owned by the defendant, Maria Van Der Aa.

[2] The plaintiff, Guy Sutton, says he reached an oral agreement with Maria on 16

January 2016 for the sale and purchase of the property. Maria accepts this, but she says it is not enforceable under s 24(1) of the Property Law Act 2007 (PLA). Whatever the status of the agreement, her more basic contention is that Guy subsequently accepted her repudiation of, or offer to terminate, the sale and purchase agreement.

[3] Both parties seek summary judgment: Guy, for specific performance of the sale and purchase agreement; Maria, for dismissal of the cause of action.

[4] This case raises two key issues. First, was there an enforceable sale and purchase agreement that Maria subsequently repudiated or offered to terminate? Secondly, did Guy accept that repudiation or offer through his conduct? I answer both questions in the affirmative. My reasons follow.

Facts

The sale and purchase agreement

[5] Guy and Maria meet around 2008 or 2009 through Maria’s husband, Jack. Within time, they all became friends. The history of their relationship, described in some detail in the respective affidavits, is not material here.

[6] The relevant events commenced in mid-January 2016 when the parties reached an oral agreement for sale and purchase. This is common ground, though the exact date is disputed: Guy says 15 January, Maria 16 January.

[7] The terms of that agreement are clear. Guy would purchase the property at the valuation price for $235,000, with a deposit of $5,000. He would take possession on
1 April 2016. Guy gave Maria a cheque for the deposit, and she gave back a receipt.

[8] The parties were well on track to formalise their agreement. Maria had her solicitors draw up a written sale and purchase agreement for them to sign. But then Maria dramatically changed course. On 20 March 2016 either Jack or Maria clearly communicated to Guy that they would no longer be selling the property to him.

Subsequent conduct

[9] Guy’s evidence is that he was shocked by Maria’s abrupt change of mind. Still, he joined Jack and Maria for a coffee at their place, and Jack and Guy made small talk until Maria handed Guy an envelope. Guy concedes he knew the envelope contained a cheque for…

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: [2017] NZHC 3006
Decision Date: 7 December 2017

CaseChat Overview and Summary

Sutton v Van der AA involved a dispute over a property at 44 Kutai Street, Turangi. Guy Sutton claimed that he had an enforceable oral agreement with Maria Josephine Van der Aa for the sale and purchase of the property, which Maria repudiated or offered to terminate. Maria argued that the agreement was unenforceable under section 24(1) of the Property Law Act 2007 (PLA) and that Guy accepted her repudiation through his conduct. Both parties sought summary judgment: Guy for specific performance of the sale and purchase agreement, and Maria for dismissal of the cause of action.

The central issues in the case were whether there was an enforceable sale and purchase agreement that Maria repudiated or offered to terminate and, if so, whether Guy accepted that repudiation or offer through his conduct. The court concluded that both questions should be answered in the affirmative. The court found that Guy’s conduct demonstrated that he accepted Maria’s repudiation or offer to terminate the contract. The court accepted that Guy’s conduct, such as accepting the return of the deposit and later banking the cheque, was consistent with an acceptance of the contract's termination. The court found that Guy’s actions were clear and unequivocal, indicating a meeting of the minds. Consequently, Guy's claim for specific performance was dismissed.

The court declined the plaintiff’s application for summary judgment and entered judgment on the defendant’s application for summary judgment. The defendant was awarded 2B costs on her application plus disbursements as fixed by the Registrar. There were no costs awarded on the plaintiff’s application, as to do so would result in a duplication of costs.

Orders