Yu v Bradley

Case [2020] NZHC 1822


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1125

[2020] NZHC 1822

BETWEEN

JING JUN YU

First Plaintiff

ANDREW INVESTMENTS (2004) LIMITED

Second Plaintiff

AND

DALE GORDON BRADLEY and JILLIAN ANNE BRADLEY

Defendants

Hearing: 2 – 5 March 2020

Appearances:

J F Anderson QC and L R Green for the plaintiffs

H M Z Lanham and J K Grimmer for the defendants

Judgment:

28 July 2020


JUDGMENT OF PALMER J


This judgment was delivered by me on Tuesday 28 July 2020 at 11.00am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

J F Anderson QC, and L R Green Barrister, Auckland H M Z Lanham and J K Grimmer, Barristers, Auckland

YU v BRADLEY [2020] NZHC 1822 [28 July 2020]

Summary

[1]    The property at 471 Whitford-Maraetai Road, Whitford, has lovely views of the Hauraki Gulf and Rangitoto. On 12 November 2016, Mr Jing Jun (Jason) Yu agreed to buy it from Mr Dale Bradley and Mrs Jillian Bradley. But the expansive lawn leading to the bush in the foreground of the sea view did not all belong to the property. When the neighbour who owned a V-shaped part of the lawn issued a Fencing Act notice before settlement, Mr Yu wanted to inspect the effect on the view. On 14 February 2017, the day before settlement, Mr Bradley prevented Mr Yu and his lawyer and valuer from inspecting the property. Mr Yu claimed compensation under cl 8 of the standard form sale and purchase agreement. He issued a settlement notice on 16 February 2017. On 20 February 2017 Mr Yu and his advisers did inspect the property. The next day, the Bradleys issued a settlement notice. Settlement did not occur. On 10 March 2017, Mr Yu purported to cancel the sale and purchase agreement. On 13 April 2017, the Bradleys did the same. Mr Yu accepted that as a repudiation. The Bradleys retained the deposit of $230,000. Mr Yu sues to get it back, plus interest. The Bradleys counterclaim for damages.

[2]    On the balance of probabilities, I find Ms Yangling (Helen) Han, the Bradley’s real estate agent, did not specifically point out the property’s boundaries to Mr Yu on a pre-sale visit. But she remedied this before his offer was presented to the Bradleys when she showed him a map clearly illustrating the boundaries. So the misrepresentation was corrected before the agreement was entered and Mr Yu’s claim on that ground fails. Under the standard terms of the Agreement, a purchaser is entitled to inspect a property to check they are getting what they agreed to pay for, before settlement. Any written authorisation of another person by a purchaser under cl 3.2 must be for those purposes. Mr Yu did not authorise his valuer, in writing, to inspect the property. But Mr Bradley denied Mr Yu his right to inspect the property before the agreed settlement date. Because of that, Mr Yu was…

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Yu v Bradley [2020] NZHC 1822
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[2020] NZHC 1822
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CaseChat Overview and Summary

In Yu v Bradley, the plaintiff, Mr Yu, sought to recover a deposit of $230,000 paid to the defendants, Mr and Mrs Bradley, for the purchase of a property in Whitford. The defendants counterclaimed for damages. The High Court found there had been no misrepresentation by the defendants as to the boundaries of the property. The defendants had breached Mr Yu’s right of inspection under the contract, but not in a way that excused Mr Yu from settling. The defendants had been ready, able and willing to settle on the settlement date. Mr Yu had failed to settle and had instead repudiated the contract by cancelling it. The Court dismissed Mr Yu’s claim and awarded the defendants damages of $575,672.99, minus deductions, plus interest. The parties were ordered to attempt to resolve their costs between themselves. If they could not, they were permitted to file and serve memoranda on the costs.

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