Ngoi v Wen [2017] NZCA 85 (28 March 2017)

Last Updated: 11 April 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA404/2016 [2017] NZCA 85
BETWEEN	KOK ANN NGOI First Appellant SUNLINE ESTATE LIMITED Second Appellant
AND	GUIRONG WEN Respondent

Hearing:	20 March 2017
Court:	French, Miller and Winkelmann JJ
Counsel:	D J Goddard QC and O C Gascoigne for Appellants D R Bigio QC for Respondent
Judgment:	28 March 2017 at 11.30 am

JUDGMENT OF THE COURT

1. The applications for an extension of time to file the case on appeal and for leave to file further evidence on appeal are granted.
2. The respondent must pay one set of costs for a standard application on a band A basis, with usual disbursements on both applications.

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REASONS OF THE COURT

(Given by Miller J)

[1] Before us are two applications, one for an extension of time for filing a case on appeal under r 43 of the Court of Appeal (Civil) Rules 2005 and the other for leave to adduce fresh evidence under r 45.
[2] The case on appeal ought to have been filed by 16 November 2016, but through oversight on part of the appellants’ then solicitors it was not filed until 5 December 2016. The delay is very short, and it cannot responsibly be suggested that any prejudice has resulted from it, although the respondent complains that the appeal itself is causing her difficulty.
[3] Mr Bigio QC accordingly sought to resist the application on the ground that the appeal has no prospects of success. The appeal is likely to turn on the existence of an oral agreement between the parties, and that question in turn depends upon whether the respondent participated in a call between one of the appellants, Mr Ngoi, and the respondent’s real estate agent, Mr Ngai. It is said that the appeal is intensely fact-based, turning on assessments of credibility and reliability, and this Court is unlikely to intervene with the findings of the trial Judge, Edwards J.^[1]
[4] We do not accept that the appeal is without prospect of success. It is an appeal by way of rehearing, and it may be, as Mr Goddard QC contended, that established facts will demonstrate that the trial Judge’s conclusions on the critical issue were wrong. The Judge did not appear to base her conclusions on demeanour, which is in any event an unreliable guide to truthfulness. It also appears to be arguable that it may not matter if the respondent did not participate in the conference call, since Mr Ngai was her agent.^[2] The argument will be that a written contract was concluded when she signed the amended agreement for sale and purchase.
[5] More than that it is not necessary to say. The application for an extension of time is granted.
[6] The second application concerns a letter dated 3 March 2014 that Mr Ngai sent to a manager at Barfoot, the real estate agency where he is employed. It refers to a conference call arranged with the parties and Mr Ngai at 5.09 pm on 14 January 2014, for a discussion about the final price.
[7] The significance of the letter is that although Edwards J found the respondent’s evidence implausible in other respects, she concluded that the appellants had not shown that the respondent participated in the alleged conference call. The Judge highlighted the absence of contemporaneous evidence that the respondent had participated in telephone calls made on that day.
[8] We accept that the evidence is fresh. The appellants only learned of the existence of the letter after the High Court judgment. It is not a document held by the appellants or within their control, and disclosure by Mr Ngai and Barfoot was mediated by solicitors acting for those parties. Documents were requested and supplied, and the appellants’ solicitors understood that there were no others.
[9] The letter is cogent. It goes directly to the Judge’s reasons for finding that she had not been satisfied that the respondent participated in the conference call. Although not contemporaneous with the transaction, it was written within two months of it, and accordingly tends to support reliability and preclude recent invention.
[10] It is suggested that if the evidence is allowed in, the Court will have little option but to send the case back for retrial or further hearing. We accept that the Court may take the view that it is not able to resolve the matter itself. That remains to be seen when the appeal is argued. The risk that it will happen does not justify refusing to admit the evidence.
[11] The application for leave to adduce fresh evidence is granted.
[12] Costs will follow the result. The respondent must pay one set of costs as for a standard application on a band A basis, with usual disbursements on both applications. As Mr Goddard submitted, the application for an extension should not have been opposed, and there is no element of indulgence about the application to adduce further evidence.

Solicitors:
BuddleFindlay, Wellington for Appellant
Pidgeon Law, Auckland for Respondent

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^[1] Ngoi v Wen [2016] NZHC 1621.

^[2] Powierza v Daley [1985] NZCA 73; [1985] 1 NZLR 558 (CA) at 560.