Yu v Bradley - [2017] NZHC 2816

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1125 [2017] NZHC 2816

BETWEEN
JIN JUN YU

First Plaintiff

ANDREW INVESTMENTS (2004) LIMITED

Second Plaintiff

AND

DALE GORDON BRADLEY AND JILLIAN ANNE BRADLEY Defendants

Hearing: 1 November 2017

Appearances:

Mr T J G Allan for Plaintiffs
Ms R S Reed QC for Defendants

Judgment:

16 November 2017

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
16.11.17 at 3.30 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

YU & Anor v BRADLEY & Anor [2017] NZHC 2816 [16 November 2017]

[1] The plaintiffs apply for summary judgment under r 12.2(1) of the High Court Rules (“HCR”). In particular, the plaintiffs claim the return of a deposit of $230,000 paid pursuant to a contract for the sale of land entered into on 13 November 2016.

[2] The defendants, who were the vendors, claim to retain the deposit. They invoked the provisions of cl 11.4 of the contract, which provides as follows:

11.4If the purchaser does not comply with the terms of the settlement notice served by the vendors then, subject to subclauses 11(1)(3):

(1) without prejudice to any other rights or remedies available to the vendors at law or in equity, the vendors may;

(a) cancel this agreement by notice and pursue either or both of the following remedies namely:

(i) forfeit and retain for the vendors own benefit the deposit paid by the purchaser, but not exceeding in all 10% of the purchase price; and

(ii) Sue the purchaser for damages.

[3] The plaintiffs claim that they can avoid the above provision. They do so on the basis that the defendants were not entitled to cancel the agreement. In answer to that assertion, the defendants say that they were entitled to cancel and that the various arguments which the plaintiffs put forward are unsustainable.

[4] I must examine the validity of the cancellation notice which the defendants served on the plaintiffs on 10 March 2017, as well as the further cancellation notice that the plaintiffs gave on 13 April 2017.

[5] The disputes between the parties that led to the eventual cancellation were three in number. The plaintiffs had served a notice on the defendants on 13 February
2017 pursuant to cl 8.1 of the contract, claiming:

a) that there had been a misrepresentation of the extent of the property which was being sold by the defendants in the promotional marketing

literature, which was issued on behalf of the defendants as vendors in late 2016;

b) that the defendants did not disclose the existence of a Fencing Act

1978 notice which had been served by the owners of a neighbouring property; and

c) a wastewater system on the property was not functioning properly.

[6] The plaintiffs sought compensation for the above matters. In other words, they wanted an amount of money removed from the purchase price pursuant to cl
8.1.

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 [2017] NZHC 2816
Case: [2017] NZHC 2816
Decision Date: 16 November 2017

CaseChat Overview and Summary

The plaintiffs sought summary judgment to obtain the return of a deposit paid pursuant to a contract for the sale of land. The defendants claimed to be entitled to retain the deposit. The main issue for the court was whether the plaintiffs were entitled to cancel the contract. The court examined the validity of the cancellation notice served by the defendants on the plaintiffs and the further cancellation notice that the plaintiffs gave on 13 April 2017. The court concluded that there was a substantial dispute as to whether the plaintiffs were materially misled by the marketing information that they had been provided with and whether the plaintiffs were entitled to cancel at a point where they were asserted to be in breach of the contract themselves. The court found that the dispute over the compliance with cl 8 gave rise to an arguable case and dismissed the summary judgment application. The parties should confer on the question of costs and the steps that are going to be necessary in order to progress the proceeding from this point.

Orders