Wen v Ngoi - [2018] NZSC 18

IN THE SUPREME COURT OF NEW ZEALAND

SC 133/2017
[2018] NZSC 18

BETWEEN	GUIRONG WEN Applicant
AND	KOK ANN NGOI First Respondent SUNLINE ESTATE LIMITED Second Respondent

Court:	Elias CJ, William Young and OʼRegan JJ
Counsel:	D R Bigio QC and H M Z Ford for Applicant D J Goddard QC, S A Barker and O C Gascoigne for First and Second Respondents
Judgment:	5 March 2018

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.
BCosts of $2,500 are awarded to the respondents.

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REASONS

In issue in this litigation is whether there was a concluded contract for the purchase by the first respondent, Dr Kok Ann Ngoi, from the applicant, Ms Guirong Wen, of a property at Karaka near Auckland.
By 13 January 2014, the parties had been negotiating in respect of the property for some time and there was in existence a form of agreement which recorded offers made by Dr Ngoi and counter-offers made by Ms Wen. On that day, Dr Ngoi told Ms Wen’s agent that he would pay any price less than $5.3m. He initialled the form of agreement beside a blank space in which Ms Wen, if she wished to proceed, was to insert a price that was less than $5.3m.
The agent met with Ms Wen the following day, ie 14 January. This was shortly before 5.00pm. Following a discussion or discussions, the detail of which is disputed, the agent inserted a price of “$5,280,000” in the blank space and Ms Wen initialled the change. At 5.30pm, the agent left Ms Wen’s home and telephoned Dr Ngoi to tell him what had happened and to confirm that there was a binding contract. At 5.37pm, Ms Wen telephoned the agent. There is dispute as to what was discussed between them. The agent met with Dr Ngoi around 5.45pm and handed him a copy of the contract. In response to a question from Dr Ngoi as to whether he should re-initial beside the price, the agent told him that this was unnecessary because there was already a binding contract.
Two days later, on 16 January, Ms Wen instructed the agent to contact Dr Ngoi to cancel the contract and now denies the existence of a binding contract.
Ms Wen refusing to settle in accordance with the agreement, Dr Ngoi sought specific performance in the High Court.[1] This claim was unsuccessful but Dr Ngoi’s appeal to the Court of Appeal was allowed.[2] Ms Wen now seeks leave to appeal to this Court.
[1]Ngoi v Wen [2016] NZHC 1621 (Edwards J).
[2]Ngoi v Wen [2017] NZCA 519 (Kós P, Woolford and Collins JJ).
The facts are highly unusual. They are also still, at least in part, in dispute. This is because the Court of Appeal granted Dr Ngoi leave to adduce further evidence on appeal directed to the events which immediately preceded the insertion of “$5,280,000” in the form of agreement and the initialling of that price by Ms Wen.[3] The…

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 Wen v Ngoi

Details

AGLC: Wen v Ngoi [2018] NZSC 18
Case: [2018] NZSC 18
Decision Date: 5 March 2018

CaseChat Overview and Summary

In the case of Wen v Ngoi, the applicant, Ms Guirong Wen, sought leave to appeal to the Supreme Court of New Zealand against the decision of the Court of Appeal. The dispute centered around whether a binding contract for the purchase of a property in Karaka near Auckland existed between Ms Wen and the first respondent, Dr Kok Ann Ngoi. The Court of Appeal had previously allowed Dr Ngoi's appeal against the High Court's decision that there was no binding contract. Ms Wen argued that the appeal raised issues of public or general importance, particularly concerning the authority of real estate agents and the principles determining when a contract for the sale of real property is concluded.

The Court considered the arguments presented by counsel for Ms Wen, focusing on the authority of real estate agents and the principles for concluding a contract in the context of offer and counter-offer. However, the Court found that the appeal did not raise issues of public or general importance due to the highly disputed and peculiar facts of the case, which were essential in determining the agent's authority and the parties' intentions regarding the contract. Additionally, the Court found no appearance of a miscarriage of justice.

Consequently, the application for leave to appeal was dismissed. The Court awarded costs of $2,500 to the respondents. The factual disputes and the specific circumstances of the case precluded the identification of broader legal principles that would warrant an appeal to the Supreme Court. This decision highlights the importance of clear and undisputed facts in establishing the authority of agents and the formation of contracts in real estate transactions.

Orders