Yu v Chandler Properties Limited - [2020] NZCA 384

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA270/2020
[2020] NZCA 384

BETWEEN	HONGYING YU Appellant
AND	CHANDLER PROPERTIES LIMITED Respondent

Court:	Brown and Collins JJ
Counsel:	K H Morrison and A Manuson for Appellant D J G Cox for Respondent
Judgment: (On the papers)	2 September 2020 at 10.30 am

JUDGMENT OF THE COURT

AThe application for review of the Deputy Registrar’s decision to extend the time for appeal is declined.
BThe application for an order that Rennie Cox be restrained from acting as solicitors for the respondent on the appeal is declined.

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REASONS OF THE COURT

(Given by Brown J)

Introduction

On 30 July 2019 Chandler Properties Ltd (the respondent) obtained an order for specific performance requiring Ms Yu (the appellant) to complete the purchase of a section of bare land in Queenstown pursuant to an agreement for sale and purchase (the Agreement).[1] On 16 April 2020 a judgment was issued declaring that the Agreement remained on foot and directing that the summary judgment may be enforced by way of a sale order (the judgment).[2]
[1]Chandler Properties Ltd v Yu HC Auckland CIV-2019-404-571, 30 July 2019.
[2]Chandler Properties Ltd v Yu [2020] NZHC 753.
On 21 May 2020, four working days out of time, the appellant filed a notice of appeal against the judgment together with an application for stay of execution of the judgment. Acting pursuant to r 5A(1)(c)(ii) of the Court of Appeal (Civil) Rules 2005 (the Rules) the Deputy Registrar of this Court extended the time for filing the notice of appeal by four working days.
The respondent filed an application for review of the Deputy Registrar’s decision by a Judge in accordance with r 5A(3)(a) of the Rules. The appellant filed an application for an order restraining Rennie Cox from continuing to act as solicitor for the respondent in this appeal (the restraint application).
In a minute of 23 June 2020 a direction was made that the restraint application and the application for review of the Deputy Registrar’s decision to grant an extension of time were to be heard together prior to any hearing on the application for stay of execution of the judgment. Those two matters are the subject of this judgment.

Relevant facts

On 24 September 2018 the appellant and respondent entered into the Agreement whereby the appellant agreed to purchase the Queenstown section. When the appellant refused to settle, the respondent sought and obtained an order for specific performance of the agreement by way of summary judgment.
The appellant having failed to comply with the summary judgment order, the respondent applied for a charging order against the property which was granted on 26 August 2019. On 19 September 2019 the respondent applied for a sale order over the property.
However it transpired that in an affidavit of 16 August 2019 in support of the application for the charging order Mr Cox of Rennie Cox stated that the respondent had given notice…

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 Chandler Properties Limited

Details

AGLC: Yu v Chandler Properties Limited [2020] NZCA 384
Case: [2020] NZCA 384
Decision Date: 2 September 2020 at 10.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Hongying Yu against Chandler Properties Limited. Yu was appealing against a High Court judgment that the Agreement for sale and purchase of a section of bare land in Queenstown remained in effect. The High Court had ordered specific performance of the Agreement and subsequently issued a sale order. Yu filed a notice of appeal four working days out of time and applied for an extension of time and a stay of execution of the judgment. The Deputy Registrar extended the time for filing the notice of appeal by four working days. Chandler Properties Limited applied for review of the Deputy Registrar’s decision and also applied for an order that Rennie Cox, solicitors for Chandler Properties Limited, be restrained from acting on the appeal.

The legal issues were whether the Deputy Registrar’s decision to extend the time for filing the appeal could be reviewed and whether Rennie Cox should be restrained from acting as solicitors for Chandler Properties Limited on the appeal. The Court found that the appellant’s statement to the Deputy Registrar concerning her lack of knowledge of the fact of the judgment was not knowingly false. Therefore, the Deputy Registrar’s decision to exercise the discretion to extend the time for filing the appeal by four days could not be impugned. The Court also found that the affidavit evidence of Mr Cox was not contentious and the affidavit of Ms Round, while contentious, did not warrant an order that Rennie Cox be restrained from acting in the appeal.

The Court declined both applications. The application for review of the Deputy Registrar’s decision to extend the time for appeal was dismissed. The application for an order that Rennie Cox be restrained from acting as solicitors for the respondent on the appeal was also dismissed.

Orders