Yu v Bradley - [2021] NZHC 1098

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1125

[2021] NZHC 1098

BETWEEN
JING JUN YU

First Applicant

AND

ANDREW INVESTMENTS (2004) LIMITED

Second Applicant

AND

DALE GORDON BRADLEY AND JILLIAN ANNE BRADLEY

Respondents

Hearing: 30 March 2021; further materials and submissions on 1 and 9 April 2021

Appearances:

EJ Watt for the Applicants

JWH Little and JK Grimmer for the Respondents

Judgment:

17 May 2021

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 17 May 2021 at 3.30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date………………………….

Solicitors:Carson Fox Legal, Auckland Powle & Hodson, Auckland

To:L Taylor QC, Auckland E Watt, Auckland
J Little, Auckland
H Lanham, Auckland J Grimmer, Auckland

YU v BRADLEY [2021] NZHC 1098 [17 May 2021]

Introduction

[1] The applicants (who for convenience I will refer to collectively as Mr Yu) apply for a stay of execution of a judgment delivered by Palmer J on 28 June 2020.1 In his judgment, Palmer J dismissed Mr Yu’s claim, granted the respondents’ (the Bradleys’) counterclaim and awarded the Bradleys damages. These were subsequently agreed by the parties to be $449,635.85, including approximately $71,000 in costs (the Judgment Sum).

[2] Mr Yu has appealed against Palmer J’s judgment and his appeal is to be heard by the Court of Appeal on 14 October 2021. Mr Yu has deposited the Judgment Sum into his solicitors’ trust account pending resolution of his appeal. Mr Yu applies for a stay of execution of the judgment because he says that the Bradleys have not provided sufficient security that the Judgment Sum will be repaid in the event his appeal is successful. 2

Factual and procedural background

[3] The dispute between the parties arose out of an agreement for sale and purchase of the Bradleys’ lifestyle property in Whitford to Mr Yu (the Agreement). Mr Yu’s case was that prior to settlement, he became aware that not all of the property he had thought formed part of the Bradleys’ property in fact did so, and wanted to carry out a further inspection to assess the resulting effect on the property’s views.

[4] Palmer J found that the day before settlement was due to occur (15 February 2017), Mr Bradley prevented Mr Yu (and his lawyer and valuer) from inspecting the property. Mr Yu claimed compensation pursuant to (then) cl 8 of the 9th edition of the REINZ/ADLS standard form terms and conditions for the sale of real estate (ADLS standard terms), which formed part of the Agreement. He issued a settlement notice on 16 February 2017, and was able to inspect the property on 20 February 2017. The

1 Yu v Bradley [2020] NZHC 1822.
2 Mr Yu’s application was originally for a stay of execution pending determination of the appeal to the Court of Appeal, and pending final determination of any appeal to the Supreme Court. Counsel for Mr Yu, Ms Watt, confirmed at…

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 [2021] NZHC 1098
Case: [2021] NZHC 1098
Decision Date: 17 May 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Jing Jun Yu (Mr Yu) applied for a stay of execution of a judgment in favour of Dale Gordon Bradley and Jillian Anne Bradley (the Bradleys). The Bradleys had been awarded damages of $449,635.85 plus costs and Mr Yu had deposited that sum into his solicitors’ trust account pending his appeal against the judgment. The Bradleys had not provided sufficient security for the repayment of the Judgment Sum if Mr Yu’s appeal was successful. The Court was required to balance the competing interests of the parties in the event the appeal was successful. The Court found that while the Bradleys were entitled to the fruits of their judgment, the undertakings they offered to repay the Judgment Sum were sufficient security in the circumstances of the case. The Court granted the application for a stay of execution in relation to $149,000 of the Judgment Sum. The balance of the Judgment Sum ($300,000) was not subject to the stay of execution and was to be paid to the Bradleys, conditional on certain undertakings being provided by the Bradleys and the Carrs (the Bradleys’ daughter and son-in-law). The parties were encouraged to agree on the costs of the proceedings. If they were unable to do so, they could file a memorandum within 15 working days of the date of the judgment.

Orders