Zhou v Watson - [2024] NZHC 496

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-435

[2024] NZHC 496

BETWEEN
LEI ZHOU AND QIUYING ZHANG

Plaintiffs

AND

THE PERSONAL REPRESENTATIVES OF THE ESTATE OF ALAN GORDON

WATSON AND ELIZABETH WATSON

Defendants

Hearing: 29 February 2024

Counsel:

E S K Dalzell and D A Fry for Plaintiffs D M Fraundorfer for Defendants

Judgment:

8 March 2024

JUDGMENT OF RADICH J

[1] The plaintiffs and the defendants were involved in a two-week hearing in the High Court on whether the defendants were liable for leaks in their family home following its sale to the plaintiffs. Just under $500,000 (together with a range of other costs and damages) was claimed for remedial work, or, alternatively, damages for a loss of value. Gendall J awarded $286,600 and interest to the plaintiffs.1 Some causes of action were made out. Others were not.

[2] The defendants have appealed and the plaintiffs have cross-appealed. The defendants have applied for a stay of execution of the judgment pending the outcome of the appeal. The plaintiffs resist the stay. They say that they are entitled to their money at once.

1 Zhou v Watson [2023] NZHC 2328, (2023) 24 NZCPR 480.

ZHOU v WATSON [2024] NZHC 496 [8 March 2024]

[3] Mr Watson, the first-named defendant, passed away after the proceedings were issued but before the High Court hearing. The second-named defendant, Mrs Watson, is 83 years old. She is undergoing treatment for cancer. Her income is limited to superannuation payments. The equity she has in the house that she now has ownership of with her son and daughter-in-law is limited and she has few other assets. Mrs Watson’s son and daughter-in-law are her carers. The appeal is to be heard in three months’ time. If Mrs Watson is required to pay the judgment debt before the appeal, she would have to sell the house.

[4] Accordingly, the Court is required to balance the competing rights of Mr Zhou and Ms Zhang to have the benefit of their judgment against the need to preserve Mrs Watson’s position against the event of the appeal succeeding.

[5] Moreover, Mr Zhou and Ms Zhang seek scale costs, expert costs and disbursements, totalling just on $190,000. The claim includes an uplift on scale costs. Mrs Watson does not believe that, through the plaintiffs’ conduct, costs should be awarded. If they are to be awarded then deductions are sought.

The High Court decision

[6] Mr and Mrs Watson built their house in Maungaraki in 1969. They raised their family in it. When they sold it to the plaintiffs in February 2020, it was largely in original condition. Mr and Mrs Watson sold the house so that they could pool resources with their son and daughter-in-law and buy a house in Tauranga with a “granny flat” to allow their son and daughter-in-law to care for them as their health was declining.

[7] Soon after settlement, Mr Zhou and Ms Zhang observed…

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 Zhou v Watson

Details

AGLC: Zhou v Watson [2024] NZHC 496
Case: [2024] NZHC 496
Decision Date: 8 March 2024

CaseChat Overview and Summary

In the case of Zhou v Watson, the plaintiffs, Lei Zhou and Qiuying Zhang, brought an action against the defendants, the personal representatives of the estate of Alan Gordon Watson and Elizabeth Watson, seeking damages for leaks in a family home following its sale. The defendants appealed against the judgment of Gendall J, who had awarded damages to the plaintiffs, and the plaintiffs cross-appealed. The defendants applied for a stay of execution of the judgment pending the outcome of the appeal, which the plaintiffs opposed. The court had to balance the rights of the plaintiffs to have the benefit of their judgment against the need to preserve the defendants' position against the event of the appeal succeeding. The appeal was to be heard in three months' time. The court granted a stay of execution of the orders made by Gendall J in the judgment, pending the determination of the appeal, on the condition that Mrs Watson must not take on any further secured debt over the Tauranga house, with the exception of any charge that might be associated with her grant of legal aid for the hearing of the appeal in this proceeding. The court declined the plaintiffs' claim for uplifted costs and the defendants' claim for no, or reduced, costs. The court allowed expert costs in the sum of $41,986.32. The court made the following awards of costs in favour of the plaintiffs: $109,522, being scale costs on a 2B basis, $27,887.75 for disbursements relating to filing, scheduling and hearing fees and costs relating to translation, and expert costs in the sum of $41,986.32.

Orders