Yu v Bradley - [2022] NZSC 154

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 93/2022
[2022] NZSC 154

BETWEEN	JING JUN YU First Applicant ANDREW INVESTMENTS (2004) LIMITED Second Applicant
AND	DALE GORDON BRADLEY AND JILLIAN ANNE BRADLEY Respondents

Court:	O’Regan, Ellen France and Williams JJ
Counsel:	L J Taylor KC and E J Watt for Applicants H M Z Lanham for Respondents
Judgment:	21 December 2022

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B The applicants must pay the respondents costs of $2,500.

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REASONS

The applicants seek leave to appeal against a judgment of the Court of Appeal arising from a dispute between the applicants and the respondents in relation to an agreement for sale and purchase of land (the agreement).[1] Under the agreement, Mr Yu was the purchaser and the respondents were the vendors. The Court of Appeal dismissed the applicants’ appeal from a decision in favour of the respondents in the High Court.[2]
[1]Yu v Bradley [2022] NZCA 378 (Cooper P, Clifford and Goddard JJ) [CA judgment]. The agreement was in the form of the 9th edition of the REINZ/ADLS template. The first applicant nominated the second applicant as purchaser. For simplicity, we will refer to the first applicant, Mr Yu, only.
[2]Yu v Bradley [2020] NZHC 1822, (2020) 21 NZCPR 220 (Palmer J).
The High Court Judge found that Mr Yu’s purported cancellation of the agreement was ineffective and the respondents were entitled to treat it as a repudiation and cancel the agreement themselves. He entered judgment in favour of the respondents for $575,672.99, less deductions for the $230,000 deposit that had been retained by the respondents, plus interest.[3]
[3]At [78], [79]–[88] and [89].
The factual background is set out in some detail in the Court of Appeal judgment.[4] We will not repeat it here. It is sufficient to say that the dispute arose from the fact that a wedge‑shaped part of what appeared to be the front lawn of the property that was the subject of the agreement was, in fact, on the title of a neighbouring property. Mr Yu claimed that the true position had been misrepresented, although he had signed a copy of a plan of the property in which the relevant boundary was clearly marked.
[4]CA judgment, above n 1, at [4]–[44].
Mr Yu argued that he had given a notice under cl 8 of the agreement claiming compensation or equitable setoff for the estimated value of the “encroached area” (the wedge). Clause 8 provided for a mechanism whereby a purchaser who alleges a breach of the agreement but does not cancel the agreement may settle on the basis that money is retained and a dispute resolution process is invoked. Mr Yu’s case was that settlement should have occurred and the cl 8 procedure should have followed.
An essential issue in the case was whether Mr Yu’s purported claim under cl 8 for compensation or equitable setoff was valid. Mr Yu…

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 Yu v Bradley

Details

AGLC: Yu v Bradley [2022] NZSC 154
Case: [2022] NZSC 154
Decision Date: 21 December 2022

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application for leave to appeal from Jing Jun Yu and Andrew Investments (2004) Limited (the applicants) against a judgment of the Court of Appeal. The appeal arose from a dispute between the applicants and the respondents, Dale Gordon Bradley and Jillian Anne Bradley, in relation to an agreement for sale and purchase of land. Under the agreement, Mr Yu was the purchaser and the respondents were the vendors. The Court of Appeal had dismissed the applicants' appeal from a decision in favour of the respondents in the High Court. The High Court Judge had found that Mr Yu’s purported cancellation of the agreement was ineffective and the respondents were entitled to treat it as a repudiation and cancel the agreement themselves. He had entered judgment in favour of the respondents for $575,672.99, less deductions for the $230,000 deposit that had been retained by the respondents, plus interest.

The legal issues before the Court were whether the Court of Appeal had erred in its findings that Mr Yu’s purported claim under clause 8 of the agreement was not valid and that the respondents were entitled to reject Mr Yu’s settlement notice and cancel the agreement. The Court of Appeal had found that Mr Yu’s purported clause 8 notice was ineffective because it did not meet the requirements of clause 8 and was expressed on a conditional basis. The Court of Appeal had also found that the respondents had been in breach of the agreement by not allowing Mr Yu and a valuer on to the property, but that Mr Yu did not serve a clause 8 notice that was not conditional, and thus no valid clause 8 claim was made. The Court of Appeal had further found that Mr Yu did not have a freestanding ability to make a claim for equitable setoff outside the procedure established in clause 8. The Court of Appeal had also found that the respondents were ready, willing and able to settle when they issued their settlement notice and that their subsequent cancellation on the basis of Mr Yu’s repudiation was lawful.

The Court was not satisfied that the criteria for the grant of leave to appeal were made out. The Court held that no matter of public importance or commercial significance arose and there was no appearance of a miscarriage of justice. The Court held that the applicants’ proposed grounds of appeal did not give rise to any matter of public importance or commercial significance, but were rather challenges to the concurrent factual findings of the Courts below. The Court held that the applicants' proposed grounds of appeal were not sustainable in the face of the findings of the Court of Appeal. The Court held that the applicants had not made out a proper basis for what would be, in essence, a third attempt to establish that the requirements of clause 8 were met. The Court held that the applicants' proposed grounds of appeal were not appropriate to be advanced at this stage. The Court held that there was no obvious error in the way in which damages were assessed based on the particular facts of this case.

The application for leave to appeal is dismissed. The applicants must pay the respondents costs of $2,500.

Orders