Zhang v Zhao - [2019] NZHC 526

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1357

[2019] NZHC 526

BETWEEN
YAPING ZHANG

Plaintiff

AND

JUNJIE ZHAO

Defendant

Hearing: 18 March 2019

Appearances:

D K Wilson for the Plaintiff

B P Rooney for the Defendant

Judgment:

21 March 2019

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 21 March 2019 at 4.00pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel: Loo & Koo, Auckland B Rooney, Auckland

ZHANG v ZHAO [2019] NZHC 526 [21 March 2019]

[1] This is an application for summary judgment by the plaintiff (Mr Zhang). He says that he sold a property to the defendant (Mr Zhao) under an unconditional sale agreement, but Mr Zhao failed to complete the purchase. Mr Zhang says that he then cancelled the contract and resold the property. He sues Mr Zhao for the loss he incurred on the resale, and various other losses. He says that Mr Zhao has no defence to his claim, and asks for summary judgment on it.

Background

[2] Mr Zhang was at all material times the registered proprietor of a property situated in The Drive, Epsom (the property). On 10 November 2016 Mr Zhao agreed to purchase the property from Mr Zhang. The agreement for sale and purchase (the Agreement) was made immediately following an auction conducted on 10 November 2016, at which the property had been passed in after the bidding had reached a figure of $3.1 million. Mr Zhao agreed to purchase the property for $3.16 million, and paid a deposit of $158,000.

[3] Mr Zhao says that he had only been taken to see the property on the day of the auction. Barfoot & Thompson were the agents, and Mr Zhao says that Owen Zheng of that firm took him to see the property. Mr Zhao knew Mr Zheng from an earlier auction sale at which he had not been the successful bidder. Mr Zheng knew that he was interested in large residential subvisible sites. Mr Zhao says he had no prior knowledge of the property.

[4] Mr Zhao's evidence is that he received marketing material from Barfoot & Thompson before the sale, in which the property was described as "Your next development project to build multiple brand new houses". He says that Mr Zheng told him that three stand-alone houses, or five townhouses, could "definitely" be built on the property, which had an area of 1,053 square metres.

[5] Mr Zhao says that he was not provided with any information memorandum or LIM report before or at the auction.

[6] Owen Zheng was unable to attend the auction, so he introduced Mr Zhao to a Barfoot & Thompson colleague, Mr Wayne Guo. Mr Guo accompanied Mr Zhao to

the auction. Mr Zhao said that Mr Guo repeatedly told him, throughout and following the auction, that the property could be subdivided into three stand-alone houses or five terraced houses.

[7]…

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 Zhao

Details

AGLC: Zhang v Zhao [2019] NZHC 526
Case: [2019] NZHC 526
Decision Date: 21 March 2019

CaseChat Overview and Summary

In Zhang v Zhao, Mr Zhang, the plaintiff, sought summary judgment against Mr Zhao, the defendant, for damages for the loss on the resale of a property that Mr Zhao failed to purchase from Mr Zhang. Mr Zhao opposed the application, and pleaded a defence and counterclaim for damages for losses allegedly caused by misrepresentations by Mr Zhang relating to the property being suitable for subdivision into three stand-alone houses or five terraced houses. The court considered whether Mr Zhao affirmed the contract, and if he did, whether that would deprive him of his right to cancel it. The court found that it was arguable that Mr Zhao affirmed the contract, but the court dismissed the summary judgment application, holding that the application of the doctrine of affirmation did not foreclose Mr Zhao's counterclaims. The court found that the justice of the case required that it dismiss the application, and ordered that any amended statement of defence and/or counterclaim by Mr Zhao be filed and served within 15 working days, and any reply and/or statement of defence to counterclaim be filed and served within 10 working days after service of any amended statement of defence and counterclaim. The Registrar was to allocate a first case management conference for the first practicable date after 1 June 2019. In accordance with usual procedure where a plaintiff's summary judgment had been dismissed, costs were reserved.

Orders