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Zhang v Northwest Developments Limited [2019] NZCA 137 (6 May 2019)

Last Updated: 14 May 2019

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

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

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Introduction

[1] 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]
[2] 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.
[3] 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:
[4] Before addressing these issues, it is necessary to start by briefly explaining the relevant background.

Background

[5] In November 2013, the owners of land known as the Huapai Triangle, northwest of Auckland, agreed to work together to maximise the value of their land by pursuing a rezoning by way of a private plan change to the Auckland Unitary Plan “together with one or more qualifying developments” under the Housing Accords and Special Housing Areas Act 2013 (Huapai Triangle Agreement).
[6] In June 2015, the five owners of some 38 hectares of land making up the eastern half of the Huapai Triangle entered into an agreement (the Five Owners’ Agreement) detailing how they would cooperate in establishing infrastructure to service their land if the plan change was successful, including the vesting in Council of land required for roads. The appellants (the Jung Interests) were signatories to the Five Owners’ Agreement as the owners of lot 7.
[7] For present purposes, the key provisions of the Five Owners’ Agreement are:
[8] The respondent (Northwest) purchased lot 8, which is adjacent to the Jung Interests’ land, in the eastern half of the Huapai Triangle from parties who were signatories to both the Huapai Triangle Agreement and the Five Owners’ Agreement. Northwest’s unconditional purchase agreement was signed in May 2015 and settled in October 2016. The agreement recorded that the vendor was pursuing a plan variation to rezone the land comprising the Huapai Triangle as a special housing area under the Housing Accords and Special Housing Areas Act. The vendor covenanted to use its best endeavours to progress the plan variation at its own cost, including by entering into agreements (as agent for Northwest as purchaser) “the Vendor regards as reasonably prudent to achieve the plan variation”. Such agreements were to be consistent with agreements entered into by other landowners in the Huapai Triangle and were to contain terms no more onerous than those other agreements. The agreement also contained the following special conditions:

The Vendor shall, at all relevant stages of the application process prior to settlement, promptly provide the Purchaser with all appropriate documentation relating to the application and its progress through Council and any Council hearing, as well as any agreements entered into.

The benefit, and obligation of all agreements entered into by the Vendor which have been disclosed by the Purchaser prior to settlement, of all agreements shall pass to the Purchaser on settlement for no further consideration and be documented accordingly (if necessary). The Vendor will, upon request by the Purchaser, sign all documents and do all things necessary to ensure that good title passes to the Purchaser in such agreements.

[9] It will be observed that the Five Owners’ Agreement was entered into after Northwest signed the agreement to purchase lot 8 but well prior to settlement. It was disclosed to and acted upon by Northwest prior to settlement.
[10] Auckland Council approved the plan variation in November 2015.
[11] In April 2016, the Jung Interests consented to subdivisional and associated infrastructure works proposed by Northwest on lot 8, including the establishment of an access road along the shared boundary between lots 7 and 8.
[12] In May 2016, the Jung Interests agreed to sell lot 7 to Sanli Homes Ltd (Sanli) with settlement in May 2017. The sale agreement made no reference to the Five Owners’ Agreement. However, on 5 October 2016, the Jung Interests executed a deed of authority in favour of Sanli authorising it to act on its behalf as if it were the owner of the land to “advance discussions and reach agreement with any ... of the parties ... or such other parties as might be affected” by specified agreements including the Five Owners’ Agreement. The Jung Interests covenanted in this deed not to “act or agree anything with any of the parties or affected parties in relation to the Huapai Triangle” without obtaining Sanli’s “written approval to such action or agreement”.
[13] In June 2016, Auckland Council approved the land use and subdivision proposed for lot 8, including the roading. Commencing in October 2016, Northwest undertook the subdivision and associated infrastructure works that the other landowners and Auckland Council had consented to.
[14] On 17 May, and on 7 and 20 September 2017, Northwest requested the Jung Interests to sign various deeds novating Northwest as a party to the Five Owners’ Agreement. The solicitors acting for the Jung Interests responded that they could not sign the deed without Sanli’s consent.
[15] Auckland Council approved a survey plan for the subdivision of Northwest’s land under s 223 of the Resource Management Act 1991 and this was lodged with Land Information New Zealand in October 2017. Before titles could issue, consent was required from parties with interests in lot 7 (the Jung Land). These parties included the Jung Interests, Sanli which had lodged a caveat notifying its interest as purchaser, and Ms Fang Deng who had registered a notice of claim under the Property (Relationships) Act 1976. The Jung Interests did not provide these consents. Northwest therefore applied to the High Court for summary judgment seeking orders requiring them to do so in accordance with their obligations under the Five Owners’ Agreement.

High Court judgment

[16] The Judge first addressed whether the summary judgment proceeding, which was issued in November 2017 under CIV-2017-404-2625 (the 2625 Proceeding), was an abuse of process in view of an existing proceeding commenced in May 2017 by Northwest against the Jung Interests under CIV-2017-404-936 (the 936 Proceeding) also seeking to enforce the Five Owners’ Agreement. Northwest claimed in the 936 Proceeding that the Jung Interests were in breach of the Five Owners’ Agreement by failing to pay their proportionate share of infrastructure costs amounting to approximately $500,000 and by failing to procure Sanli to execute the agreement contemplated by cl 58 of the agreement. Northwest sought an injunction restraining the Jung Interests from settling the sale of lot 8 until the purchaser enters into an agreement in terms of cl 58 and judgment for the infrastructure costs payable under the agreement. The Jung Interests counterclaimed against Northwest and joined Sanli as a third party to the 936 Proceeding. Northwest has now relied on the judgment in the 2625 Proceeding as founding an issue estoppel on various issues in the 936 Proceeding, including that it is entitled to enforce the Five Owners’ Agreement against the Jung Interests. Sanli has also pleaded issue estoppel based on the summary judgment in proceedings it has brought against the Jung Interests under CIV2017404980.
[17] The Jung Interests did not raise abuse of process in their notice of opposition to the application for summary judgment, nor did they apply to strike out the proceeding on that ground. Rather, it was the Judge who raised this question at the hearing and gave the parties an opportunity to file submissions addressing the issue. In response to this invitation, the Jung Interests submitted that a fundamental issue common to both proceedings was whether Northwest was entitled to enforce the Five Owners’ Agreement against them. They contended there were other related questions common to both proceedings and it was an abuse of process for Northwest to bring a new, overlapping proceeding to avoid having Sanli before the Court. They also complained that this added to the cost of defending the claims.
[18] The Judge concluded there was no abuse of process for reasons he summarised in the following two paragraphs of his judgment:

[20] The key issues must be resolved between Northwest and the Jung interests. The factual issues to which the key issues are gateways are very different in the two proceedings. If summary judgment can be granted in this proceeding then that will be an expedient and cost-effective solution. If it cannot be granted then this proceeding can either be consolidated with the 936 proceeding or case managed with it. Importantly, the hearing has taken place.

[21] I do not consider Sanli’s position to be relevant. The key issues are simple and confined to the contractual relationship between Northwest and the Jung interests. Whatever contractual arrangements the Jung interests made with Sanli are of no concern to Northwest. Sanli entered into its contract with the Jung interests knowing of the 5 Owners Agreement.

[19] The Judge succinctly summarised why he considered Northwest was entitled to enforce the Five Owners’ Agreement. He concluded that its purchase agreement complied with the requirements of cl 58 of the Five Owners’ Agreement referred to at [7(d)] above. Further, the Judge was satisfied that a novation agreement had been executed by all parties other than the Jung Interests. They could not rely on their contractual obligations to Sanli to justify not signing the novation agreement.[3]
[20] The Judge was also satisfied that the Jung Interests remained liable under the Five Owners’ Agreement and had not complied with their obligations under cl 58 when entering into the unconditional sale to Sanli.[4] The Judge considered that the competing equitable interests in lot 7 (the mortgagee, Sanli and Ms Deng) could not affect the Jung Interests’ contractual obligations, owed to Northwest, to procure their consent to enable the plan to deposit.[5] The Judge dismissed the Jung Interests’ assertion that Northwest could compel Sanli to consent to the survey plan under a separate agreement. The Judge considered this was immaterial and could have no bearing on the Jung Interests’ obligations under the Five Owners’ Agreement.[6] Finally, the Judge was satisfied that the orders sought were all within the terms of the Five Owners’ Agreement and the Jung Interests had no arguable defence to Northwest’s claims.[7] The Judge accordingly made declarations and orders by way of specific performance as set out in [1] above.

Was the proceeding an abuse of process?

Submissions

[21] Mr Dillon, for the Jung Interests, submits that Northwest ought to have amended their claim in the 936 Proceeding to seek the relief it sought in the 2625 Proceeding. This would have prevented duplication and given Sanli standing to oppose. He relies on the decisions in Registered Securities Ltd (in liq) v Yates and Cowley v Shortland Publications Ltd to support his contention that the 2625 Proceeding was in the circumstances an abuse of process. [8]

Analysis

[22] The court has broad discretionary powers to prevent its processes from being abused.[9] This serves the dual public interest in securing the just determination of disputes according to law in an orderly and effective manner and ensuring the efficient use of the court’s resources. Richardson J discussed the relevant principles in Moevao v Department of Labour, concluding that the overriding concern is with conduct on the part of a litigant which “would strike at the public confidence in the Court’s processes and so diminish the Court’s ability to fulfil its function as a Court of law”.[10] It is not possible to lay down hard and fast rules or to restrict instances of abuse to defined categories. Each case must be decided on its own facts by reference to the overriding objective of maintaining public confidence in the administration of justice and upholding the rule of law.
[23] Without restricting the court’s inherent jurisdiction, r 15.1 of the High Court Rules 2016 empowers the court to strike out all or part of a proceeding if it is an abuse of the process of the court.
[24] For the reasons set out below, we consider that Brewer J was correct not to strike out the 2625 Proceeding as an abuse of the process of the Court (ground (k) in the notice of appeal).
[25] First, the Jung Interests did not apply to strike out the proceeding as an abuse of process. While this is by no means determinative, it is relevant that they did not raise any complaint of abuse of process despite their comprehensive notice of opposition to the application for summary judgment which listed 13 separate grounds of opposition, including 12 sub-grounds and reliance on 22 affidavits.
[26] Secondly, it might have been regarded as odd, and contrary to the interests of justice, if the Court had, of its own motion, struck out the proceeding after the parties had filed all the required pleadings and evidence, prepared fully for the hearing and presented their submissions. Had the Court struck out the claim at that stage despite concluding there was no arguable defence, Northwest would have been denied the speedy and inexpensive resolution of its claim which the High Court Rules are designed to promote. Resolution of the claim would be deferred for months, or even years, until the 936 Proceeding was prepared for hearing and able to be heard and determined. In the meantime, new titles for Northwest’s land would be delayed, affecting many thirdparty purchasers who were waiting to complete settlement of their purchases and commence building houses on the sections. It would also delay payment to Northwest of some $23 million due on settlement of sales 10 working days following issue of title. None of this would be likely to enhance public confidence in the due administration of justice.
[27] Thirdly, the claim made (failure to consent to the plan) and the relief sought by Northwest in the 2625 Proceeding (an order requiring them to do so) was separate and distinct from the relief it sought in the 936 Proceeding (a claim for an injunction restraining a breach of cl 58 and for recovery of a debt). This case is clearly distinguishable from Registered Securities Ltd (in liq) v Yates where the plaintiff commenced fresh summary judgment proceedings against the same defendants seeking the same relief having failed in earlier summary judgment proceedings relying on the same loan agreement. The second authority relied on by Mr Dillon, Cowley v Shortland Publications Ltd, is also distinguishable. There, the plaintiff, an author of children’s books, issued proceedings claiming the defendant publisher had breached its obligations under various agreements. The plaintiff sought an inquiry as to damages or an inquiry as to the commission due to her. With the benefit of discovery obtained in the first proceeding, and without discontinuing that proceeding, the plaintiff commenced a second proceeding for breach of the same agreements but seeking summary judgment for royalties the plaintiff had been able to quantify from the defendant’s discovery in the first proceeding. The present case is far removed from these examples of abuse of the court’s processes.
[28] Fourthly, the claim in the 2625 Proceeding could not have been advanced at the time the 936 Proceeding was issued. The s 223 certificate was not issued, and the survey plan was not deposited, until October 2017. The Jung Interests could not be said to be in breach of any obligation to consent to the survey plan at the time the 936 Proceeding was issued in May 2017.
[29] Fifthly, while Northwest could have filed an amended statement of claim in the 936 Proceeding, it does not necessarily follow that it was abusing the processes of the court in choosing instead to seek summary judgment on the separate and more limited claim that required prompt determination when the 2625 Proceeding was issued. Northwest considered the Jung Interests had no arguable defence to the claim pursued in the 2625 Proceeding and that it was entitled to avail itself of the summary judgment procedure to have that claim determined swiftly and inexpensively. There is no indication that Northwest issued the 2625 Proceeding for some collateral purpose or for any improper motive. In our view, it acted properly within the letter and spirit of the High Court Rules in choosing to commence fresh proceedings seeking summary judgment rather than amending its claim in the 936 Proceeding. As the Judge observed, if summary judgment was not granted, the proceeding would no doubt have been consolidated or at least case managed and heard together with the 936 Proceeding.

Was Northwest entitled to enforce the Five Owners’ Agreement?

Submissions

[30] Mr Dillon submits that the Five Owners’ Agreement prevents assignment of rights to a third party unless there is a novation or a new agreement on the same terms. He says there is no evidence of a novation or a new agreement signed by all required parties other than the Jung Interests. He says that the documents tendered to the Jung Interests were not compliant and they were therefore not obliged to sign them. Accordingly, Mr Dillon contends Northwest was not entitled to enforce the Five Owners’ Agreement against the Jung Interests.

Analysis

[31] As noted, cl 68 of the Five Owners’ Agreement prohibits assignment, unless to a successor in title of all or part of the landowner’s land, and in accordance with cl 58.[11] Because of its central importance to this issue, it is helpful to set out the terms of cl 58 of the Five Owners’ Agreement in full:

Agreement to Bind Successors in Title

58. Subject to clause 59 the rights and obligations of each party shall run with their respective lands as detailed in Schedule A. Each party must assign or transfer its rights and obligations under this Agreement when transferring any part of its interest in any part of the Landowners’ Land to a successor in title (from time to time). It will also cause such successor/s to enter a new agreement/s with the other parties on the same terms as this Agreement or a deed of novation, so that the successor in title is bound on the same terms as the transferring/assigning party is bound by this Agreement.

(Emphasis added.)

[32] There are two parts to cl 58. The first mandates assignment to a successor in title. The second, which is an additional requirement signalled by the word “also”, is to cause any such successor in title to enter into a new agreement on the same terms or a deed of novation. Mr Dillon’s submission focuses only on the second part of the clause, overlooking the effect of the first part. It will be recalled that the agreement for sale and purchase signed by Northwest in May 2015 provided that the benefit and obligation of all agreements entered into by the vendor and disclosed prior to settlement in October 2016 shall pass to Northwest. There can be no dispute that the Five Owners’ Agreement fell into this category.
[33] Section 50(1) of the Property Law Act 2007 provides that the absolute assignment in writing of a legal or equitable thing in action, signed by the assignor, passes to the assignee all the rights and remedies of the assignor in relation to the thing in action. The Five Owners’ Agreement is a chose or “thing” in action.[12] It was assigned absolutely (not conditionally or by way of charge only) by the vendors, who were original signatories to it, to Northwest. Following settlement, Northwest was entitled to enforce the rights and remedies available under the agreement. This answers ground (c) in the notice of appeal.
[34] Given this conclusion, it is not necessary for us to resolve the separate question of whether any of the three deeds of novation presented to the Jung Interests were in proper form and whether this could provide an alternative basis for Northwest to sue on the Five Owners’ Agreement (ground (a) in the notice of appeal). If there was a valid novation, Northwest’s rights to sue on the agreement would be based on the novation. If there was no novation, Northwest was entitled to sue as assignee. Either way, we are satisfied Northwest was entitled to sue on the Five Owners’ Agreement.
[35] For completeness, we note that no reliance appears to have been placed in the High Court on two further possibilities. The first is that Northwest might have been entitled to sue on the agreement as an undisclosed principal, given the Five Owners’ Agreement appears to have been entered into by the Vendor “as agent for the Purchaser” in terms of the agreement for sale and purchase referred to at [8] above (being an agreement regarded by the Vendor as “reasonably prudent to achieve the plan variation”). The second is that Northwest could sue in reliance on s 12 of the Contract and Commercial Law Act 2017 as a party designated by reference to a class in the agreement (a permitted assignee/successor in title) and on whom the agreement confers a benefit.[13]

Were there disputed factual issues essential to the determination of the claim that could not be resolved in the context of an application for summary judgment?

Submissions

[36] Mr Dillon submits there were numerous disputed issues of fact that could not be resolved on the basis of affidavit evidence alone and the application for summary judgment should have been dismissed for this reason. In particular, Mr Dillon contends the Judge erred in concluding in the context of a summary judgment application that:

Analysis

[37] To succeed in obtaining summary judgment, Northwest had to establish there was no arguable defence to the claim, which was ultimately reduceable to three basic propositions: first, that Northwest was entitled to sue on the Five Owners’ Agreement; secondly, that the Jung Interests were in breach of their obligations under the agreement to provide the necessary consents to the survey plan; and thirdly, that the relief sought was appropriate. It was not necessary for Northwest to prove that Sanli purchased lot 7 without knowledge of the Five Owners’ Agreement or that the Jung Interests had not transferred their rights and obligations under the agreement to Sanli. Absent a novation or a new agreement, the Jung Interests remained liable under the Five Owners’ Agreement whether or not they had assigned the benefits of that agreement to Sanli. We agree with Brewer J that Sanli’s position was not relevant to Northwest’s claim which sought only performance by the Jung Interests. That disposes of grounds (b), (d) and (e).
[38] Northwest did have to prove breach by the Jung Interests (ground (f)). Mr Dillon says that the Jung Interests advised Northwest that they would consent to the survey plan as soon as Sanli provided its consent and that they had sought Sanli’s consent but it had not been forthcoming. He says the “sticking point” was always the consent of Sanli. Mr Dillon submits there was no evidentiary basis for the Court’s finding that the Jung Interests were in breach.
[39] That the Jung Interests were in breach of their obligations under the Five Owners’ Agreement is indisputable. They had not given their consent to the plan as they were obliged to do. Sanli may well have been the “sticking point” in that the Jung Interests had covenanted with Sanli “not to act or agree anything” under the agreement without first obtaining Sanli’s written approval. However, their promise to Sanli could not absolve the Jung Interests from their obligations under the Five Owners’ Agreement.
[40] That leaves ground (l), whether summary judgment was appropriate. For the reasons given, we are satisfied there were no essential disputed issues of fact precluding the grant of summary judgment on the underlying claim. The success or failure of ground (l) will therefore depend on the next issue of whether the relief granted was appropriate.

Was the relief granted appropriate?

[41] In this section, we address the remaining grounds of appeal, grounds (g), (h), (i) and (j), which assert the Judge erred:

Submissions

[42] Ground (g) focuses on the use of the word “procure” in the orders. Mr Dillon submits the Judge went too far in requiring the Jung Interests to procure consent from third parties over whom they had no control. He submits all they could do was to use reasonable endeavours. He says this is all they had promised to do under cl 69 of the Five Owners’ Agreement (referred to at [7(g)] above — “use its reasonable endeavours to obtain its existing mortgagees’ (and any other security holders’) consent to, and ... be bound by the terms of this agreement”).
[43] As to ground (h), Mr Dillon says that if Sanli can establish that it had no knowledge of the Five Owners’ Agreement when it purchased then, as a prior caveator to Northwest, it will have priority over Northwest’s equitable interest in the land to be vested in Council for a road (over part of lot 7). Similarly, Mr Dillon submits that the mortgagee’s interest has priority over any claim by any party to the Five Owners’ Agreement. In these circumstances, Mr Dillon submits the order made by the Judge went too far in requiring the Jung Interests to “procure” consent from these parties.
[44] Mr Dillon makes a similar argument with reference to ground (i). He says Ms Deng’s notice of claim lodged under the Property (Relationships) Act must be determined in accordance with that Act. He says it is not possible for the Jung Interests to “procure” her consent and no such order should have been made.
[45] As to ground (j), Mr Dillon submits that the procedure under s 145A of the Land Transfer Act could do no more than determine whether the caveator had an interest in the land, it could not determine priorities between competing claimants. He submits the Judge erred in ordering the Jung Interests to “procure” withdrawal of the caveats by pursuing this procedure.

Analysis

[46] The Judge made three orders. The first (order (a)) required the Jung Interests to give their consent to the survey plan. There can be no objection to that. Grounds (g), (h), (i) and (j) are directed to the second two orders the Judge made:[14]

(b) To procure any person with a registered interest in 77 Nobilo Road or who has lodged a caveat or other interest that has been noted on the title to the land, including the persons named in paragraph 22 of the statement of claim dated 2 November 2017, to consent to the Survey Plan to deposit.

(c) To take such steps as may be reasonably required, in the event that such consent should not be immediately forthcoming, to procure the withdrawal of any caveat or other interest, including the initiation and prosecution of procedures pursuant to s 145A of the Land Transfer Act 1952.

[47] While the orders could have been cast in terms more directly reflecting the relevant obligations under the Five Owners’ Agreement, we are far from persuaded this could justify overturning the judgment. While order (b) might appear to impose an absolute obligation to procure consent from the third parties if read in isolation, it is clear from order (c) that this is not the case. Order (c) expressly contemplates that consent will not be able to be procured under (b) and directs the Jung Interests in that event to take “such steps as may be reasonably required” to facilitate registration of the plan without such consent. This closely mirrors the obligation under cl 16 of the Five Owners’ Agreement (referred to at [7(c)] above — “do all things reasonably necessary” to enable the vesting to occur and under cl 69 to “use its reasonable endeavours” with respect to mortgagees and other security holders. Attempting to remove a caveat under s 145A of the Land Transfer Act is a step within the scope of cl 16 that might enable the plan to deposit without consent of the caveators.
[48] In any event, the orders were complied with in that the relevant consents were all provided following delivery of the judgment enabling the plan to deposit and new titles to issue. Technical arguments about the precise tailoring of the orders could not justify intervention on appeal in these circumstances.

Conclusion

[49] All grounds of appeal having failed, the appeal must be dismissed. We agree with the Judge 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.

Result

[50] The appeal is dismissed.
[51] The appellants are jointly and severally liable to pay the respondent costs for a standard appeal on a band A basis and usual disbursements.






Solicitors:
Queen City Law, Auckland for Appellants
Castle/Brown, Auckland for Respondent

[1] Northwest Developments Ltd v Zhang [2018] NZHC 1736 [High Court judgment].

[2] At [38]–[39].

[3] At [24].

[4] At [25]–[31].

[5] At [32]–[33].

[6] At [34]–[35].

[7] At [36].

[8] Registered Securities Ltd (in liq) v Yates (1991) 5 PRNZ 68 (HC); and Cowley v Shortland Publications Ltd (1991) 5 PRNZ 76 (HC).

[9] Moevao v Department of Labour [1980] 1 NZLR 464 (CA) at 479.

[10] At 482.

[11] Clause 68 refers to permitted assignment under cls 58 and 59. However, cl 59 is not relevant here.

[12] Property Law Act 2007, s 48.

[13] Ballance Agri-Nutrients (Kapuni) Ltd v The Gama Foundation [2005] NZCA 267; [2006] 2 NZLR 319 (CA) at [98], [121] and [136] .

[14] High Court judgment, above n 1, at [39].

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