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…
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.
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AGLC
Yu v Bradley [2020] NZHC 1822
Case
[2020] NZHC 1822
Decision Date
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.