Yu v Bradley - [2019] NZHC 1455

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001125

[2019] NZHC 1455

BETWEEN
JING JUN YU

First Plaintiff

ANDREW INVESTMENTS (2004) LIMITED

Second Plaintiff

AND

DALE GORDON BRADLEY and JILLIAN ANNE BRADLEY

Defendants

Hearing: (On the papers)

Counsel:

J F Anderson QC and J C Adams for the Plaintiffs R S Reed QC and J K Grimmer for the Defendants

Judgment:

26 June 2019

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 26 June 2019 at 10:00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

YU & ANOR v BRADLEY & ANOR [2019] NZHC 1455 [26 June 2019]

Introduction

[1] The plaintiffs entered into a sale and purchase agreement on 13 November 2016 to purchase the property at 471 Whitford-Maraetai Road from the defendants (“the agreement”). Settlement was to occur on 15 February 2017. Issues arose and by mid-April 2017 both parties had purported to cancel the agreement. When the defendant vendors refused to return the deposit, the plaintiffs initiated this proceeding and sought summary judgment.

[2] On 16 November 2017, Associate Judge Doogue declined to grant summary judgment.1 The plaintiffs applied for leave to appeal to the Court of Appeal under s 56(3) of the Senior Courts Act 2016.

[3] On 4 September 2018, I dismissed the plaintiffs’ application for leave to appeal.2

[4]Unfortunately, the parties have been unable to agree as to costs.

Further background

[5] To a large degree, the determination of costs in this matter is influenced by the circumstances in which the plaintiffs brought the application for summary judgment and their knowledge at the time of doing so. It is therefore necessary to set out in some detail the substance of the application.

[6] The factual background to the proceeding was set out in my decision declining leave to appeal as follows:

[3] The agreement was based on the ninth edition of the standard Real Estate Institute of New Zealand Inc/Auckland District Law Society agreement for sale and purchase of real estate (“ADLS agreement”).

[4] Before the date of settlement, the plaintiffs raised various issues about the property; the condition of the waste water system, the removal of a fence, and boundary misrepresentation. They sought to begin a cl 8 procedure to resolve compensation for these breaches, and maintained a right to cancel in respect of the boundary misrepresentation. They also argue their ability to

1 Yu v Bradley [2017] NZHC 2816.
2 Yu v Bradley [2018] NZHC 2312.

begin a cl 8 process in respect of the boundary misrepresentation was obstructed by the defendants, who refused their valuer access onto the property. The plaintiffs eventually cancelled the agreement (or purported to) by letter of 10 March 2017, on the basis at settlement the defendants were not ready, willing and able to settle in accordance with cl 11(2).

[5] The defendants contest this version of events. They issued a settlement notice on 20…

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 [2019] NZHC 1455
Case: [2019] NZHC 1455
Decision Date: 26 June 2019

CaseChat Overview and Summary

In the case of Yu v Bradley, the plaintiffs sought summary judgment for the return of a deposit following the purported cancellation of a property sale agreement. The defendants opposed the summary judgment application, and the plaintiffs' application was ultimately declined. The plaintiffs then sought leave to appeal this decision, which was also declined. The matter of costs in relation to these applications is now before the Court. The defendants sought increased costs for the summary judgment application and scale costs for the appeal application. The plaintiffs argued that the costs of the summary judgment application should be reserved until the substantive proceeding was determined, while they conceded that scale costs should be awarded for the appeal application.

The court found that the plaintiffs' application for summary judgment was not so lacking in merit as to warrant an award of costs against them. Although the application was ultimately unsuccessful, the court found that the plaintiffs had reasonable grounds to believe their application would succeed and that the reasons for the refusal were not so clear as to justify a costs penalty. The court did, however, find that the plaintiffs should have been aware, after the decision on the summary judgment application, that their appeal would also be unsuccessful, and ordered that scale costs be paid for that application. The court reserved the matter of costs in relation to the summary judgment application until the substantive proceeding was determined.

Orders