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Nguyen v SM & T Homes Ltd [2016] NZCA 581; [2017] 3 NZLR 281; (2016) 18 NZCPR 427 (6 December 2016)

Last Updated: 2 February 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellants
AND
 First Respondent BARFOOT & THOMPSON LIMITED Second Respondent
Hearing:
9 November 2016
Court:
Randerson, Duffy and Whata JJ
Counsel:
N C King for Appellants S C Dench for First Respondent T D Rea for Second Respondent
Judgment:


JUDGMENT OF THE COURT

A The appeal is dismissed.

  1. The respondents are entitled to costs against the appellants for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________


REASONS OF THE COURT

(Given by Duffy J)

[1] The appellants, Thi and Vinh Nguyen (“the Nguyens”), are the owners of a residential property at 42 Church Street, Otahuhu, which was sold at auction to the first respondent, SM & T Homes Ltd. The second respondent, Barfoot & Thompson Ltd (“Barfoots”), is the real estate agency that handled the sale for the Nguyens. Since the auction the Nguyens have refused to transfer the property to SM & T Homes. It accordingly sought and was granted an order for specific performance by Edwards J in the High Court at Auckland.[1] That judgment is now the subject of this appeal.
[2] The appeal raises three issues, namely whether Edwards J was right to conclude that:

Background and factual issues

[3] Thi and Vinh Nguyen are the registered owners of the property. They are sister and brother. On 8 November 2013 the Nguyens appointed Barfoots as their agent for the purpose of selling the property by auction. The sale was handled by one of Barfoots’ sales persons, Ricky Yap, who was appointed because he, like the Nguyens, is Vietnamese and so could converse with the Nguyens in their own language. Only Thi Nguyen signed the Agency Agreement, but in doing so she certified that she was authorised by Vinh Nguyen to appoint Barfoots as their agent.
[4] The auction was initially set to take place on 11 December 2013. However, as we set out below, the date was brought forward in consequence of a written preauction offer of $440,000 made by SM & T Homes on 28 November 2013, which was accepted by the Nguyens the following day.
[5] Edwards J found that on the evening of 29 November 2013 the Nguyens signed the necessary documents to action the pre-auction offer.[2] They signed a completed “Reserve Authority”, which authorised Barfoots to sell the property by public auction on 3 December 2013 with a reserve price of $440,000. At the same time Thi Nguyen was shown and Vinh Nguyen signed in duplicate a full copy of a document Edwards J described as the “Auction Conditions”. These were in the form approved by the Real Estate Institute of New Zealand Incorporated and by the Auckland District Law Society Incorporated titled “Particulars and Conditions of Sale of Real Estate by Auction” (the Auction Conditions). This form includes a series of standard conditions and a “Memorandum of Contract” page. The latter provides for the insertion of details relevant to a particular auction sale. The relevant details of the SM & T Homes pre-auction offer, including the price of $440,000 and the deposit of $44,000, were recorded there.
[6] For reasons we accept, Edwards J rejected Vinh Nguyen’s evidence that on 29 November 2013 he only signed blank forms of the Reserve Authority and the Auction Conditions.[3] The Reserve Authority he signed also bears Ms Nguyen’s signature. There was no dispute that she had signed the completed Reserve Authority on 29 November 2013. Vinh Nguyen has only referred to signing one Reserve Authority, which he signed after Thi Nguyen later that same day. This leaves no room for him to have signed a blank Reserve Authority. He was never going to attend the auction, and so it was necessary for him to sign the Auction Conditions beforehand.
[7] Also for reasons we accept, Edwards J found that Thi Nguyen did not sign the Auction Conditions until after the auction on 3 December 2013.[4] She was to attend the auction so there was no need for her to sign them earlier.
[8] After 29 November 2013 there were open home viewings of the property on 30 November and 1 December 2013. Thi Nguyen’s evidence was that after the open home on 30 November 2013 Mr Yap told her that if no one bid higher than the reserve price of $440,000 she would have to sell the property at that price. She says she told him then that she wanted to withdraw the property from sale and to cancel the auction, but Mr Yap told her she could not do so. Ms Nguyen says she telephoned Mr Yap on 2 December 2013 and repeated her wish to cancel the auction. She says he told her he had four buyers and so she had no need to be worried. Mr Yap denies that Ms Nguyen told him she wanted to cancel the auction either on 30 November 2013, or at any other time. Edwards J preferred Mr Yap’s evidence on this point.[5] We can see no basis to interfere with Edwards J’s finding.
[9] Further, Thi Nguyen was present, albeit in an adjacent room, when the property went to auction, yet she neither said nor did anything to indicate she did not want the auction to proceed. Before the auction Vinh Nguyen did nothing that would indicate he did not want the property to be sold, and on the day of the auction he was elsewhere. This conduct suggests to us that the Nguyens were happy for the sale by auction to proceed as planned.
[10] At auction on 3 December 2013 the bids exceeded the reserve price. SM & T Homes was the highest bidder with a bid of $450,000. After the auction Mr Yap amended the written Auction Conditions that Vinh Nguyen had signed on 29 November 2013. He inserted the date of 3 December 2013 on the front page as the sale date. On the page headed Memorandum of Contract Mr Yap crossed out the written price of $440,000 and wrote in $450,000, which was then initialled by Mr Piner, a director of SM & T Homes. Then Mr Piner and Dr Glover, the other director, handed a bank cheque for $44,000 to Mr Yap as payment of the deposit. After that Mr Yap took the Auction Conditions (incorporating the agreement for sale and purchase already signed by Mr Nguyen) to Thi Nguyen, who signed them but did not initial the change to the purchase price. The next day Barfoots issued a receipt for the deposit. The receipt is dated 4 November 2013, but it is common ground that the date is an error and it was actually issued on 4 December 2013. The cheque was banked by Barfoots.
[11] Following the auction SM & T Homes instructed its solicitor on the conveyance of the property. However, on 7 December 2013 Mr Yap received a text message from Thi Nguyen stating that she did not want to sell the property anymore. Later that day Mr Yap happened to drive past the property and noticed that a sold sign had been placed on the advertising board. He took a photograph of the board. The same day he telephoned Thi Nguyen, who repeated her view and asked Mr Yap for help. On 9 December 2013 Mr Yap advised Ms Nguyen that he had consulted his manager and that it was best for her to talk to a lawyer.
[12] From 13 December 2013 onwards the solicitor acting for SM & T Homes attempted to engage with the Nguyens’ nominated solicitor and, on her withdrawal, with the Nguyens directly to advance the conveyance of the property. The attempts were ignored. On 20 December 2013 Anthony Worsp, who is Mr Yap’s manager, contacted the Nguyens, asking them for details of their nominated solicitor and reminding them of the settlement date of 22 January 2014. Vinh Nguyen replied the same day denying knowledge of the sale or that he had signed any documents relating to the sale. SM & T Homes made further attempts to progress the conveyance, all of which were to no avail. On 15 January 2014 SM & T Homes registered a caveat against the title of the property. The settlement date was 22 January 2014. However, the Nguyens failed to settle. The solicitor acting for SM & T Homes took the usual steps to effect settlement. When these failed proceedings for specific performance were issued on 13 June 2014.
[13] Before Edwards J, part of the Nguyens’ case was that at the relevant times they did not understand the legal effect of the documents they signed; nor did they realise that once the auction had closed, the property was sold and they were obliged to see it conveyed to SM & T Homes. Edwards J rejected the Nguyens’ evidence in this regard.[6] The Judge was satisfied that any language difficulties were overcome by the involvement of Mr Yap as the Nguyens’ agent. Further, the Nguyens’ conduct before and at the time of the auction was consistent with them understanding what they had agreed to do. On this point Edwards J also relied on Bradley West Solicitors Nominee Co Ltd v Keeman for the proposition that a lack of understanding cannot, on its own, release a party from the obligations contained in the document it has signed.[7] We endorse the Judge’s findings on the relevant facts and law as follows:[8]

It seems likely that the Nguyens did understand what they were signing, but if they did not, then they committed to those obligations at their own risk. A lack of understanding does not provide grounds in this case to release them from their contractual obligations.

Legal issues

[14] In their written submissions the Nguyens disputed any contract of sale was formed but in oral submissions their counsel accepted that, once the auctioneer’s hammer descended on the final bid made on 3 December 2013, there was a concluded contract for the sale of the property.
[15] The next question is whether the contract is enforceable. This depends upon whether the record of the contract satisfies the requirements of s 24 of the Property Law Act 2007 (“PLA”) or, if not, whether the contract is saved by part performance.

Section 24 requirements

[16] As the contract concerns the sale of land, s 24 of the PLA applies:
  1. Contracts for disposition of land not enforceable unless in writing

(1) A contract for the disposition of land is not enforceable by action unless—

(a) the contract is in writing or its terms are recorded in writing; and

(b) the contract or written record is signed by the party against whom the contract is sought to be enforced.

(2) ...

[17] Here there is a concluded contract; the question is whether there is a sufficient written and signed record of its terms.
[18] There was no dispute that the Auction Conditions, as signed by Thi Nguyen on 3 December 2013, constitute an enforceable contract for the purpose of s 24 of the PLA. In this regard we agree with the finding of Edwards J:[9]

By signing the Agency Agreement and Reserve Authority, Ms Nguyen authorised the auctioneer to form a contract of sale on her behalf by accepting bids at or above $440,000. That is in fact what happened. The document signed by Ms Nguyen after the auction evidenced the terms of the bargain struck moments earlier when the auctioneer accepted SM & T’s bid of $450,000.

[19] It was suggested the contract did not bind Thi Nguyen because she did not initial the price increase. This point has no merit. The price of $450,000 was fixed at auction at which Ms Nguyen was present. When she signed the contract of sale after the auction it reflected that price and did not require initialing as if it were a change to an amount previously agreed in binding form.
[20] As regards Vinh Nguyen the position is more complicated. Nevertheless, we are satisfied there is a sufficient written record of the contract such that it is also enforceable against him. Edwards J found:[10]

In summary, by signing the Auction Conditions and Reserve Authority on the evening of 29 November 2013, Mr Nguyen was authorising the auctioneer to form a contract of sale by accepting the highest bid at or above $440,000 at auction. The final terms of sale would be comprised in one of the copies of the Auction Conditions he had signed.

[21] Vinh Nguyen signed the Reserve Authority and the Auction Conditions before the auction, and thus before the contract was concluded. In general, the written record of a contract must be signed after the contract is concluded.[11] That is because, normally, it could not be said to be a record of the concluded contract. However, this is not an invariable rule. As Mr Dench submitted for SM & T Homes, as at 29 November 2013 the Auction Conditions identified the land to be sold, the vendors and the purchaser and the agreed method by which the price for the land was to be fixed. Regarding the latter, the Memorandum of Contract page of the Auction Conditions specified a price of $440,000 and a deposit of $44,000. Clause 2.1 of the Auction Conditions, which appears under the heading “Conduct Of Auction”, provided:

The property is offered for sale subject to a reserve price and, subject to the reserve price being met, the highest bidder whose bid is accepted by the auctioneer shall be the purchaser.

[22] The Reserve Authority that Mr Nguyen signed on 29 November 2013 made the pre-auction bid of $440,000 the reserve price, which is why it was entered as the price on the Memorandum of Contract page. When the two documents are read together it becomes clear that they fixed a mechanism for determining the sale price of the property, which was to be either the reserve of $440,000 or the highest bid at the auction sale in excess of the reserve.
[23] We are satisfied that, in the unique circumstances of this case, there was a sufficient written record signed by Mr Nguyen for the purposes of s 24 of the PLA. By signing the Reserve Authority and the Auction Conditions Mr Nguyen acknowledged all of the terms of sale as set out in the relevant documents other than the final price and the name of the successful bidder. He also committed himself to the auction process and agreed to be bound to accept any bid that equalled or exceeded the preauction offer of $440,000. While, as the Auction Conditions stated, the property could have been withdrawn from sale before the auction, that did not happen. The auction proceeded and the agreement for sale and purchase was concluded at the fall of the hammer before any indication by either of the Nguyens that they did not wish to proceed with the sale. Effectively, Mr Nguyen had committed to a process that provided the machinery to enable the final details of the price and purchaser to be included after the completion of the auction without the need for any further steps on his part. He clearly understood that he would be bound to accept the price established at auction by the successful bidder. Since he did not intend to go to the auction, he must be taken in all the circumstances as authorising Barfoots as his agents to complete the details of the purchaser and the price achieved at auction.[12]
[24] The purpose of the requirement for writing in s 24 of the PLA is to avoid fraud by reducing the opportunities for persons to attempt fraudulent dealings in relation to land. The section traces its history back to the Statute of Frauds.[13] In the present case the purpose of the section is met. The essential elements of the contract were all present when Vinh Nguyen signed the Auction Conditions on 29 November 2013. All that was then required was for the auction to take place; there was nothing else to be done. Once the auction took place and the final bid was made it fixed the sale price and the purchaser, as well as concluding the sale.
[25] Edwards J relied in part on the decision of Roxburgh J in Leeman v Stocks in which a property was sold at auction.[14] In that case, no written record of any kind was signed before the auction, although the auctioneer had inserted the name of the vendor into a memorandum of contract prior to the auction. After completion of the auction, the auctioneer procured the signature of the purchaser to the agreement but it was never signed by either the vendor or the auctioneer. Nevertheless, the Court found that the insertion of the vendor’s written name into the memorandum of contract prior to auction was sufficient to meet the writing requirements.
[26] Edwards J found that the present case was stronger than Leeman v Stocks for the reasons we have already set out.[15] Mr King for the Nguyens submitted that Leeman v Stocks was an example of the “authenticated signature fiction” discussed in a number of authorities. He submitted that reliance on the authenticated signature fiction was inappropriate in the circumstances of this case. We agree this case does not depend on the authenticated signature fiction in the usual sense. As Mr Dench submitted, there was an actual signature by Ms Nguyen and Mr Nguyen had earlier signed the Auction Conditions in the terms already identified. No further signature was required from him for the reasons we have already given. There being no question that an agreement for sale and purchase was concluded at the fall of the hammer at auction, the only issue was whether there was a sufficient contract or written record signed by the party against whom the contract is sought to be enforced. For the reasons given, we are satisfied there was such a record.

Part performance

[27] At the hearing of the appeal we raised with counsel whether SM & T Homes had an available alternative argument based on part performance to overcome any lack of writing if, contrary to our view, s 24 of the PLA was not complied with. We allowed counsel to file submissions on this point, including as to whether any amendment of the pleadings was appropriate.
[28] SM & T Homes did not expressly plead part performance in either its statement of claim or its reply to the Nguyens’ statement of defence. However, it did plead the existence of a concluded contract on the fall of the auctioneer’s hammer coupled with the subsequent payment of a deposit of $44,000. So the key factual allegations on which a claim of part performance might rest were pleaded.
[29] SM & T Homes now seeks to amend its statement of claim to include a pleading that squarely raises reliance on part performance, without making additional factual allegations.
[30] In their statement of defence the Nguyens did not specifically plead reliance on s 24 of the PLA to render the contract unenforceable. Edwards J permitted that argument to be run at trial as she considered the question of the contract’s enforceability had been implicitly raised by their pleading.[16] SM & T Homes argues that it should also be permitted to run an argument that has always been implicitly apparent from its pleadings.
[31] If it had been necessary to do so, we would have allowed an amendment to SM & T Homes’ pleadings to enable it to rely on part performance. The key factual allegations to support part performance have already been pleaded and answered in the Nguyens’ statement of defence.[17] Although Mr King contended otherwise, no further evidence is required, nor in our view could any such evidence affect the findings of fact that are relevant to the issue of part performance. Furthermore, we note that the present circumstances are similar to those in Fleming v Beevers, where the pleaded factual allegations supported part performance without expressly saying so.[18] That aspect of the pleading did not prevent this Court from allowing the appeal on the basis there were “sufficient acts of part performance to make the composite oral transaction enforceable as a whole”.[19]
[32] Section 26 of the PLA expressly retains the doctrine of part performance.[20] The essential elements of the doctrine were stated by Tipping J in TA Dellaca Ltd v PDL Industries Ltd[21] and approved by this Court in Mahoe Buildings Ltd v Fair Investments Ltd[22] and in Fleming v Beevers.[23] With the slight amendment suggested in Fleming v Beevers the criteria are:[24]
[33] The first limb of the test is met in this case since it is admitted a contract came into force that was enforceable but for the PLA.
[34] Regarding the second step, the act in question must be performed by the party seeking to rely on part performance.[25] Here SM & T Homes paid a bank cheque of $44,000 as a deposit to Barfoots. The cheque was receipted by Barfoots and banked in their trust account for the benefit of the Nguyens.
[35] The Nguyens argue that payment of the deposit is not an act of part performance because they never received those funds. They submit that the payment of funds into Barfoots’ trust account is meaningless, and that the funds cannot be treated as received by them or their agent until such time as they are dispersed to those persons. The Nguyens provide no authority to support this proposition.
[36] We consider that the second limb of the test is focused on the steps taken by SM & T Homes, rather than by the Nguyens or their agent. By paying the bank cheque to Barfoots, SM & T Homes handed over funds to the Nguyens’ agent. We find this was a step taken by SM & T Homes in performance of its obligations as the purchaser of the property following sale by auction. When viewed independently of the contract, this action is consistent with the existence of a contract for the sale of the land to SM & T Homes.
[37] This Court in Mahoe Buildings Ltd v Fair Investments Ltd[26] and Fleming v Beevers[27] discussed the judgments given by the House of Lords in Steadman v Steadman.[28] Although divergent views were expressed by their Lordships, it appears to be accepted that Steadman held that the old rule in Maddison v Alderson[29] that mere payment of money would never be a sufficient act of part performance no longer represents the law. As noted in Burrows Law of Contract in New Zealand, Steadman does not state the converse, so the position of a purchaser’s deposit or part payment is unclear.[30] According to Burrows, the payment of money will probably continue to be regarded as usually equivocal, but capable of being rendered persuasive by the surrounding circumstances. This view appears to have been accepted by Tipping J in TA Dellaca Ltd v PDL Industries Ltd.[31]
[38] Here it is not in dispute that a contract was concluded at the fall of the hammer. This was followed by the immediate payment of the deposit by the purchaser to Barfoots as the vendor’s agent. The payment was clearly referable only to the purchase of the property in question following the auction. Barfoots accepted the deposit, deducted their commission and are holding the balance. All of those acts were done as the agent of the vendors under the Agency Agreement. Although the Nguyens have not received payment of the deposit, this is because they have refused to accept the funds from Barfoots. They cannot rely on this conduct to undermine SM & T Homes’ part performance of the contract. Accordingly, the second limb of the test is satisfied. Even if this were not the case, the doctrine of part performance is just that. It does not require performance of the contract in full.
[39] The Nguyens refer to the fact that the deposit that was paid was $44,000, when the Auction Conditions required a deposit of 10 per cent and the property was sold for $450,000. The Auction Conditions specifically state that the deposit will be “10% of the purchase price unless otherwise agreed”. The Memorandum of Contract explicitly records the deposit as being $44,000. We are satisfied that the amount of the deposit was varied from 10 per cent by agreement.
[40] The third limb of the test is also satisfied. First, because it would be unconscionable in the circumstances of this case as summarised above at [23] to permit the Nguyens to avoid the consequences of an otherwise enforceable contract they admit was formed at auction simply because one of them (Vinh Nguyen) has refused to sign the record of the contract after the auction. Second, Barfoots could have signed the contract documents on Vinh Nguyen’s behalf. It is well established law that auctioneers for the sale of land have implied authority to execute the written record of the sale on behalf of both vendor an[32]purchaser.32 This principle exists to avoid the very outcome that has occurred in this case. Because the law has long required contracts for the sale of land to be in writing, the law has also recognised that with sale by auction there is a need to ensure an enforceable contract is made at the conclusion of [33]e auction.33 This is achieved by granting the auctioneer the necessary authority to produce an enforceab[34] contract.34 This authority is irrevocable, presumably to ensure that a vendor cannot avoid the consequences of a concluded auction sale after the event by withdrawing the auctioneer’s authority to sign on behalf of the vendor and refusing to s[35]n himself.35 However, the auctioneer’s authority to execute an enforceable written contract does not continue i[36]efinitely.36 Accordingly it would now be too late for the auctioneer to execute the auction conditions on behalf of Vinh Nguyen.
[41] The fact that Barfoots did not act promptly to sign the contract on Vinh Nguyen’s behalf after the auction should not be held against SM & T Homes, who have done all in their power to fulfil the contract.
[42] The doctrine of part performance exists to ameliorate the harsh consequences that would sometimes flow from a rigid requirement that all contracts for the sale of land be recorded in writing, and in particular to ensure that such requirement not become an instrument of fraud.[37] If necessary, we would have found that the doctrine of part performance applies and that the lack of writing (if established) was not a bar to relief.

Interest recovery

[43] Edwards J found the Nguyens were required to pay penalty interest at 15 per cent for late settlement.[38] We have found that the Nguyens agreed to sell the property on the terms set out in the Auction Conditions. These plainly provide for payment of interest for late settlement at a rate of 15 per cent. It was always apparent to the Nguyens that their late settlement would incur such interest. The late interest condition does not require SM & T Homes to make out their loss. It is not suggested the late interest rate was a penalty. The rate is fixed by agreement in order to avoid the very sort of arguments raised by the Nguyens in the present case. They have suggested that SM & T Homes has not suffered any loss by reason of the late settlement. Arguments to that effect are precluded by the parties’ agreement as to the interest rate to be applied.

Result

[44] The appeal is dismissed.
[45] The respondents are entitled to costs against the appellants for a standard appeal on a band A basis and usual disbursements.









Solicitors:
Sinisa Law, Auckland for Appellants
Jan P Campi, Auckland for First Respondent
Glaister Ennor, Auckland for Second Respondent

[1] SM & T Homes Ltd v Nguyen [2015] NZHC 3228.


[2] SM & T Homes Ltd v Nguyen, above n 1, at [59].

[3] At [54]–[59].

[4] At [61]–[63].

[5] SM & T Homes Ltd v Nguyen, above n 1, at [80].

[6] SM & T Homes Ltd v Nguyen, above n 1, at [74].

[7] Bradley West Solicitors Nominee Co Ltd v Keeman [1994] 2 NZLR 111 (HC) at 116.

[8] SM & T Homes Ltd v Nguyen, above n 1, at [77].

[9] SM & T Homes Ltd v Nguyen, above n 1, at [68].

[10] At [71].

[11] See D W McMorland Sale of Land (3rd ed, Cathcart Trust, Auckland, 2011) at [4.03]: “Where the contract itself is not in writing but is merely evidenced by a sufficient written record, that record must, generally speaking, have come into existence after the contract was made” (footnote omitted).

[12] D’Oyly Downs Ltd v Galloway [1970] NZLR 1077 (SC) at 1085–1086.

[13] Act for the Prevention of Frauds and Perjuryes 1677 (UK), s 4.

[14] Leeman v Stocks [1951] 1 Ch 941 (Ch).

[15] SM & T Homes Ltd v Nguyen, above n 1, at [91].

[16] SM & T Homes Ltd v Nguyen, above n 1, at [86].

[17] Paragraph 6 of the amended statement of claim dated 3 November 2014 pleads the payment of the required deposit; para 6 of the Nguyens’ statement of defence dated 5 December 2014 acknowledges receipt of the deposit but pleads it was paid for an earlier purpose, and not as a consequence of the sale of the property to SM & T Homes.

[18] Fleming v Beevers [1994] 1 NZLR 385 (CA) at 391.

[19] At 394.

[20] In England and Wales the doctrine is no longer available when it comes to the enforcement of oral contracts to sell land; see the Law of Property (Miscellaneous Provisions) Act 1989 (UK), s 2(8).

[21] TA Dellaca Ltd v PDL Industries Ltd [1992] 3 NZLR 88 (HC) at 109.

[22] Mahoe Buildings Ltd v Fair Investments Ltd [1994] 1 NZLR 281 (CA) at 287.

[23] Fleming v Beevers, above n 18 at 391–392.

[24] In Mahoe Buildings Ltd v Fair Investments Ltd, above n 22, this Court approved the test stated in the High Court’s judgment in TA Dellaca Ltd v PDL Industries Ltd, above n 21. In Fleming v Beevers, above n 18, at 392, this Court when dealing with a composite transaction substituted the phrase “consistent with that alleged” in (b)(ii) for the original phrase employed in TA Dellaca “such as that alleged”.

[25] Mahoe Buildings Ltd v Fair Investments Ltd, above n 22, at 287.

[26] Above n 22.

[27] Above n 18.

[28] Steadman v Steadman [1976] AC 536 (HL).

[29] Maddison v Alderson (1883) 8 App Cas 467 (HL) at 478–479.

[30] Burrows, Finn and Todd Law of Contract in New Zealand (5th ed, LexisNexis, Wellington, 2016) at 303.

[31] TA Dellaca Ltd v PDL Industries Ltd, above n 21, at 102.

[32] See McMorland, above n 11, at [3.22(e)]; Emmerson v Heelis [1809] EngR 286; (1809) 127 ER 989 (Comm Pleas); Beer v London and Paris Hotel Co (1875) LR 20 Eq 412 (Ch) at 426; Bell v Balls [1897] 1 Ch 663 (Ch) at 669. See also Property Law Act 2007, s 6.

[33] See Phillips v Butler [1945] Ch 358 (Ch) at 361–362.

[34] See Chaney v Maclow [1929] 1 Ch 461 (CA) at 473–474; and Phillips v Butler, above n 33, at 361.

[35] See Phillips v Butler, above n 33, at 362.

[36] Bell v Balls, above n 32, at 671.

[37] See Fleming v Beevers, above n 18, at 393.

[38] SM & T Homes Ltd v Nguyen, above n 1, at [101] and [105].

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