Watene v Wiki - [2017] NZHC 1908

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-768 [2017] NZHC 1908

UNDER Section 72 District Courts Act 1947

BETWEEN

SHARYN HEENI WATENE First Appellant

ZAPA TRUST LIMITED Second Appellant

AND

PAMELA CHARLOTTE WIKI Respondent

Hearing: 27 March 2017

Counsel:

J R Grace for Appellants
D D Vincent for Respondent

Judgment:

11 August 2017

JUDGMENT OF CLIFFORD J

Introduction

[1] In early March 2009 Pamela Wiki, the respondent, agreed to purchase an apartment from Zapa Trust Ltd, the second appellant, for $535,000. On 24 March she paid a deposit of $35,000 to Sharyn Watene, the first appellant, as stakeholder for Zapa Trust.1 That purchase was never completed and in August 2016, in the District Court at Wellington, Judge Harrop found that Ms Watene and Zapa Trust were liable to return that deposit to Ms Wiki.2

[2] Ms Watene and Zapa Trust now appeal that decision. They do so saying the
Judge wrongly applied the relevant legal principles — particularly those relating to the cancellation of conditional contracts — in reaching his decision.

1 Ms Watene is the sole shareholder and director of Zapa Trust.
2 Wiki v Watene [2016] NZDC 15322.

WATENE v WIKI [2017] NZHC 1908 [11 August 2017]

[3] As to the facts, Judge Harrop recorded in his decision that, whilst there were a number of factual disputes before him, he did not need to resolve those to determine the case, and that he understood counsel to agree.3 That was as confirmed to me by counsel. Moreover, there are no relevant factual disputes in terms of the issues on appeal.

Facts

[4] In these circumstances, the facts can be stated briefly.

[5] Ms Wiki and Ms Watene were friends. In February 2009 Ms Wiki and her daughter moved into apartment 6A in a block of apartments owned by Zapa Trust at
8 Lipman Street, Wellington. Ms Watene was in the process of having those apartments renovated. Shortly thereafter Ms Wiki and Raewyn Perfect, a mutual friend, agreed to purchase apartment 6B in that block (the Apartment).

[6] A written contract was signed, but subsequently lost. It is agreed, however, that the contract provided for a purchase price of $535,000, that a deposit of $35,000 was subsequently paid and that the purchasers’ obligations were subject to finance. Finance was to be confirmed within seven working days of the date of the agreement and, reflecting the work being done on the Apartment, settlement was to take place five working days after title to the Apartment was issued and notice to that effect had been given.

[7] Ms Wiki and Ms Perfect were unable to confirm finance within the specified time. A second agreement was signed on 5 May 2009. That agreement was not lost. The parties used the Eighth Edition of the REINZ/ADLS standard form agreement for sale and purchase of real estate. The essential terms of that agreement were the same as the first save that, reflecting the payment of the deposit, the purchase price was $500,000. Ms…

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 Watene v Wiki

Details

AGLC: Watene v Wiki [2017] NZHC 1908
Case: [2017] NZHC 1908
Decision Date: 11 August 2017

CaseChat Overview and Summary

Sharyn Heeni Watene and Zapa Trust Limited appeal a District Court decision that they were liable to return a $35,000 deposit to Pamela Charlotte Wiki. Wiki had entered into a contract with Zapa Trust to purchase an apartment in Wellington, and paid the deposit to Watene as stakeholder. However, the purchase was never completed and Wiki sought a refund of the deposit. Judge Harrop found in Wiki’s favour and ordered the deposit to be returned. Watene and Zapa Trust contend the Judge erred in law in determining that Wiki was entitled to the return of the deposit. They submit that Wiki had repudiated the contract and was therefore not entitled to the return of the deposit. They further submit that the Judge was wrong to find that Wiki was not required to give notice of her intention to avoid the contract before doing so. Clifford J found that the Judge had not erred in law and dismissed the appeal. The Court found that a reasonable time had passed for the fulfilment of the finance condition, and accordingly Wiki’s letter of 8 November 2011 constituted a lawful avoidance of the contract. The Court further found that the Supreme Court decision in Steele v Serepisos established that Wiki was not required to give notice of her intention to cancel.

Orders