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Yu v Bradley

Yu v Bradley

Case [2018] NZHC 2312 4 September 2018

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV- 2017-404-001125 [2018] NZHC 2312

BETWEEN
JING JUN YU

First Plaintiff

ANDREW INVESTMENTS (2004) LIMITED

Second Plaintiff

AND

DALE GORDON BRADLEY and JILLIAN ANNE BRADLEY

Defendants

Hearing: 31 May 2018

Appearances:

Jane Anderson QC and Julia Adams for the Plaintiffs
Rachael Reed QC and Jordan Grimmer for the Defendants

Judgment:

4 September 2018

JUDGMENT OF MOORE J

This judgment was delivered by me on 4 September 2018 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

YU & ANOR v BRADLEY & ANOR [2018] NZHC 2312 [4 September 2018]

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] Associate Judge Doogue declined to grant summary judgment on

16 November 2017.1 The plaintiffs now seek leave to appeal to the Court of Appeal.

Factual background

[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 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 February 2017. By that time the plaintiffs had inspected the property. On the basis of the plaintiffs’ purported cancellation, they were of the view the plaintiffs had
evinced an intention not to settle. On 13 April 2017 they took the plaintiffs’

1 Yu v Bradley [2017] NZHC 2816.

cancellation as a repudiation and cancelled the agreement. In reliance on cl 11.4 of the agreement, the defendants retained the $230,000 deposit paid under the agreement.

The impugned decision

[6] The key issues before Associate Judge Doogue, in resolving whether the defendants had a defence to any of the causes of action, were whether either the plaintiffs or defendants were entitled to and validly cancelled the agreement. At the time of their purported cancellations, each…

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 [2018] NZHC 2312
Case: [2018] NZHC 2312
Decision Date: 4 September 2018

CaseChat Overview and Summary

Yu v Bradley was an application by the plaintiffs, Jing Jun Yu and Andrew Investments (2004) Limited, for leave to appeal against a decision of the High Court declining to grant summary judgment. The plaintiffs had entered into a sale and purchase agreement with the defendants, Dale Gordon Bradley and Jillian Anne Bradley, to purchase property at 471 Whitford-Maraetai Road. Issues arose and both parties purported to cancel the agreement, leading to this proceeding. The plaintiffs sought summary judgment, which was declined by Associate Judge Doogue. They now seek leave to appeal to the Court of Appeal.

The key issue was whether either the plaintiffs or defendants were entitled to and validly cancelled the agreement. Associate Judge Doogue concluded it was arguable the plaintiffs could not complain they were prevented from complying with the time limit for seeking compensation because of a breach of contract on the part of the defendants. Consequently, the plaintiffs’ justification for cancellation was insufficient and the defendants had a reasonably arguable defence.

In determining whether to grant leave to appeal, the Court considered whether there was a good reason for the appeal to be considered before or separately to the substantive appeal and whether the appeal was sufficiently meritorious and important. The Court found there was good reason for the appeal to be considered separately, as an appeal concerning an application for summary judgment, if successful, will be dispositive. However, the appeal was not sufficiently meritorious and important, as the arguments on appeal were not capable of bona fide and serious argument. There were too many factual and legal issues in dispute to satisfy the merit and importance limb of the test.

The application for leave to appeal was dismissed. The Court held that any issues arising out of the summary judgment application should be resolved at trial.

Orders