Vo v Nguyen

[2024] NZHC 1126

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2946

[2024] NZHC 1126

IN THE MATTER

of an application for summary judgment

BETWEEN

DUC NGOC VO and ONEHUNGA TRUSTEE COMPANY LIMITED, as

trustees of THE DUC FAMILY TRUST Plaintiffs

AND

KHANH NGOC NGUYEN

Defendant

Hearing:

(On the papers)

Counsel:

S A Grant for Plaintiffs

No appearance for Defendant

Judgment:

8 May 2024

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 8 May 2024 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

…………………………………

VO v NGUYEN [2024] NZHC 1126 [8 May 2024]

[1]        The plaintiffs seek summary judgment against Mr Nguyen for damages following his failure to settle the purchase of a property from the plaintiffs.

[2]        On 21 December 2021, Mr Nguyen agreed to buy from the plaintiffs a property at Papatoetoe, Auckland for $1.86m. The contract was to settle on 21 June 2022 and while a deposit was paid, Mr Nguyen did not settle. The plaintiffs issued a settlement notice to Mr Nguyen and resold the property for $1.15m on 11 April 2023. These proceedings were filed on 7 December 2023.

[3]        The proceedings were served on Mr Nguyen on 4 March 2024. The first call of the summary judgment application was on 30 April 2024, having been adjourned from its earlier List date as service had not been completed.

[4]        Clauses 12.4(2) and 12.4(3)  of  the  contract  between  the  plaintiffs  and  Mr Nguyen provide:

(2)Where the vendor is entitled to cancel this agreement, the entry by the vendor into a conditional or unconditional agreement for the resale of the property or any part thereof shall take effect as a cancellation of this agreement by the vendor if this agreement has not previously been cancelled and such resale shall be deemed to have occurred after cancellation.

(3)The damages claimable by the vendor under subclause 12.4(1)(b)(ii) shall include all damages claimable at common law or in equity and shall also include (but shall not be limited to) any loss incurred by the vendor on any bona fide resale contracted  within  one  year  from the date by which the purchaser should have settled in compliance with the settlement notice. The amount of that loss may include:

(a)interest on the unpaid portion of the purchase price at the interest rate for late settlement from the settlement date to the settlement of such resale; and

(b)all costs and expenses reasonably incurred in any resale or attempted resale; and

(c)all outgoings (other than interest) on or maintenance expenses in respect of the property from the settlement date to the settlement of such resale.

[5]        The plaintiffs listed the property with well-known Auckland real estate agents who conducted a full sales campaign over an extended period. There is no reason to believe that the sale by the plaintiffs was not a bona fide re-sale contracted within one

year from the date by which Mr Nguyen should have settled, in compliance with the settlement notice, that being the test for the purpose of clause 12.4(3) set out in [4] above.

[6]        Mr Nguyen has taken no steps. There is no doubt he signed the contract to purchase which he failed to settle. I am satisfied Mr Nguyen has no arguable defence to the plaintiffs’ claims for damages arising from that failure to settle.

[7]        At this point the plaintiffs are seeking an interim judgment given there are potentially issues as to how interest for the period following a re-sale should be addressed.

[8]        I am prepared to adopt that pragmatic course as given the size of the shortfall on the sale price, if Mr Nguyen cannot meet that amount, whether interest is available and at what rate will become academic.

[9]        Accordingly, there is judgment against Mr Nguyen which is quantified as follows:

Item	Amount Lost	Amount Received
Loss on Resale after deducting deposit	$590,000.00
Commission on Resale	$29,859.75
Legal Costs on Resale	$5,009.40
Interest on unpaid balance of purchase price	$235,591.23
Rates	$4,262.48
Insurance premiums	$2,032.39
Repairs	$5,690.50
Mortgage interest	$48,100.44
SUBTOTAL LOSSES	$920,546.00
Less Rental received	$62,730.00
TOTAL LOSSES	$857,816.00

[10]      The above table is taken from the statement of claim. While the figures actually add up to $857,816.19 (an additional 19 cents), judgment is sought for

$857,816.00 — hence that is the judgment that will be given.

[11]      Interest is calculated from the scheduled settlement date under the contract with Mr Nguyen to the settlement of the re-sale.

[12]      The plaintiffs rely on cl 12.4(2) set out above, as cancelling the original contract, hence interest being claimed for the full period. I accept that submission.

[13]Accordingly, there is summary judgment for the plaintiffs in the sum of

$857,816.00 together with costs on a 2B basis as per Ms Grant’s, counsel for the plaintiffs, schedule annexed to her draft order appended to her memorandum  dated  2 May 2024.

[14]      Leave is reserved to the plaintiffs to seek further orders relating to interest, that leave being in terms of para [3] of the interim judgment tabled by Ms Grant. The Registrar may now seal the interim judgment on payment of any sealing fee payable.

Associate Judge Lester

Solicitors:
Daniel Overton Goulding, Auckland (for Plaintiffs)

Copy to counsel:
S A Grant, Barrister, Auckland (for Plaintiffs)