Xu v Meng - [2021] NZHC 1936

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000508

[2021] NZHC 1936

BETWEEN
WEI XU and JUNHUI ZHANG

Plaintiffs

AND

XING MENG and HUIMIN GUAN

Defendants

Hearing: 20 July 2021

Appearances:

H L R McDermott for Plaintiffs C J Pendleton for Defendants

Judgment:

29 July 2021

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by Associate Judge Andrew on 29 July 2021 at 3.45 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar

Date ………………………

XU & OR v MENG & OR [2021] NZHC 1936 [29 July 2021]

Introduction

[1] The plaintiffs seek, by way of summary judgment, an order for recovery of possession of their property at Browns Bay.1

[2] The defendants, in possession, dispute the jurisdiction of the Court to make the order. They counterclaim on the basis they are entitled to remain in possession pending a refund of a deposit they paid as purchasers under an oral agreement for the sale and purchase of the Property.2
[3] The defendants obtained a caveat over the Property, protecting their interest as conditional purchasers, in March 2020. They failed to obtain the necessary finance by a Court-imposed deadline and the caveat has now lapsed. They have made no payments of any kind to the plaintiffs for well over 12 months.

[4] Part 13 of the High Court Rules 2016 provides for summary proceedings to recover land from “unlawful occupiers”, but the definition of that term expressly excludes occupiers holding over after the termination of a tenancy.3
[5] To determine the ultimate issue of whether the plaintiffs have established the defendants have no defence, I must resolve the following questions:

(a)Are the defendants “unlawful occupiers” in the meaning of pt 13 of the Rules, or does the tenancy exclusion apply meaning the Court has no jurisdiction to make the orders sought?

(b)Do the defendants have a contractual, or other, legal right to remain in possession pending the refund of the deposit?

(c)Should I, as a matter of discretion, decline to enter summary judgment and instead, direct that the plaintiffs’ claim and the defendants’ counterclaim be tried at the same time?

1      The Property.
2      The Agreement.
3      Rules 13.1 and 13.2.

Factual background

[6] The plaintiffs, Wei Xu and Junhui Zhang, own the Property, at 105 Bayside Drive, Browns Bay. Mr Xu and one of the defendants, Huimin Guan have known each other for over 20 years.

[7] In May 2018, the defendants moved into the Property on the basis of the Agreement that they would ultimately purchase it.

[8]The Agreement was an oral one, and included the following terms:

(a)The purchase price would be $1.78m;

(b)A deposit of 20 per cent would become payable when the defendants, the purchasers, sold their own property;

(c)The defendants would pay the mortgage payments for the Property and other outgoings, including rates and insurance, up until settlement; and

(d)The Agreement was conditional upon the defendants obtaining…

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 Xu v Meng

Details

AGLC: Xu v Meng [2021] NZHC 1936
Case: [2021] NZHC 1936
Decision Date: 29 July 2021

CaseChat Overview and Summary

The plaintiffs, Wei Xu and Junhui Zhang, sought summary judgment against the defendants, Xing Meng and Huimin Guan, to recover possession of their property at Browns Bay. The defendants, in possession of the property, disputed the Court's jurisdiction to make the order and counterclaimed for a refund of their deposit as purchasers under an oral agreement for the sale and purchase of the property. The defendants had obtained a caveat over the property, which lapsed after they failed to secure finance by a Court-imposed deadline. The plaintiffs argued that the defendants were unlawful occupiers under the High Court Rules, while the defendants argued they had a contractual right to remain in possession pending a refund of their deposit. The Court needed to determine whether the defendants were unlawful occupiers, whether they had a contractual or other right to remain in possession, and whether it should decline to enter summary judgment and instead direct that the plaintiffs' claim and the defendants' counterclaim be tried at the same time. The Court found that the defendants were unlawful occupiers for the purposes of the High Court Rules and that the Court had jurisdiction to grant summary judgment for recovery of the land. The Court rejected the defendants' argument that they had a contractual or other right to remain in possession pending the refund of the deposit, and held that the Agreement had come to an end when the defendants failed to obtain finance by the deadline. The Court also rejected the defendants' argument that it should exercise its discretion to dismiss the application for summary judgment and direct that the plaintiffs' claim and the defendants' counterclaim proceed together to trial. The Court granted the plaintiffs' application for summary judgment and made an order against the defendants for recovery of the property, to come into force 28 days after the date of the judgment. The Court also held that the plaintiffs were entitled to costs on a 2B basis plus disbursements.

Orders