Zhang v Northwest Developments Ltd - [2019] NZCA 137

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA407/2018
[2019] NZCA 137

BETWEEN	CHENG ZHANG, JIN KUK JUNG AND PILL SOON SO Appellants
AND	NORTHWEST DEVELOPMENTS LIMITED Respondent

Hearing:	2 April 2019
Court:	Gilbert, Wylie and Thomas JJ
Counsel:	R M Dillon and T A Hwang for Appellants M J Fisher and K J Ng for Respondent
Judgment:	6 May 2019 at 9.30 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellants are jointly and severally liable to pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Gilbert J)

Introduction

This is an appeal against the entry of summary judgment by Brewer J granting declaratory relief and making orders for specific performance of a land development agreement (referred to in this judgment as the Five Owners’ Agreement) to enable a survey plan of subdivision to deposit and new titles to issue for the respondent’s land.[1] The orders required the appellants: (a) to consent to the survey plan; (b) to procure any person who had lodged a caveat or other interest against the title to their land to consent to the survey plan; and (c) in the event such consent was not immediately forthcoming, to take such steps as may be reasonably required to procure the withdrawal of any caveat or other interest, including by pursuing an application under s 145A of the Land Transfer Act 1952.[2]
[1]Northwest Developments Ltd v Zhang [2018] NZHC 1736 [High Court judgment].
[2]At [38]–[39].
Since the entry of judgment, the relevant consents have been given, the survey plan has been deposited and the new titles have been issued. Despite this, the appellants, who were the defendants in the High Court, appeal against the judgment. They say: the respondent was a stranger to the Five Owners’ Agreement and had no right to sue on it; they were not in breach of any obligation under the agreement; the summary judgment proceeding was unnecessary and inappropriate; the relief granted was inappropriate; and the proceeding was an abuse of process. While the substantive relief granted is no longer of any consequence (other than costs), they contend the appeal is necessary to overcome a defence of issue estoppel (which relies on the summary judgment) that has now been pleaded by the respondent (and a caveator) in separate High Court proceedings concerning the same development.
The appellants advance 12 grounds in support of their appeal (grounds (a) to (l)). However, these can be dealt with most conveniently under four heads:
(a)Whether the summary judgment proceeding was an abuse of process. The appellants contend that the claim ought to have been pursued in the separate High Court proceeding that was already on foot between the parties arising out of the Five Owners’ Agreement.
(b)Whether the respondent was entitled to sue on the Five Owners’ Agreement as an assignee or as a novated party.
(c)Whether there were disputed factual issues…

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 Zhang v Northwest Developments Ltd

Details

AGLC: Zhang v Northwest Developments Ltd [2019] NZCA 137
Case: [2019] NZCA 137
Decision Date: 6 May 2019 at 9.30 am

CaseChat Overview and Summary

The Court of Appeal considered an appeal against the entry of summary judgment by Brewer J granting declaratory relief and making orders for specific performance of a land development agreement to enable a survey plan of subdivision to deposit and new titles to issue for the respondent’s land. The appellants, who were the defendants in the High Court, argued that the respondent was a stranger to the Five Owners’ Agreement and had no right to sue on it; they were not in breach of any obligation under the agreement; the summary judgment proceeding was unnecessary and inappropriate; the relief granted was inappropriate; and the proceeding was an abuse of process. The appellants advanced twelve grounds in support of their appeal. The Court of Appeal held that the appeal must be dismissed because all grounds of appeal having failed, the appeal must be dismissed. The Court of Appeal was satisfied that there was no arguable defence to the claim and its pursuit by way of summary judgment and not by amending the 936 Proceeding was not, in all the circumstances, an abuse of the process of the Court. The Court of Appeal concluded that the appellants were jointly and severally liable to pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

Orders