GOLDEN GARDEN LIMITED v ZHAO AND ANOTHER [2017] NZCA 227

GOLDEN GARDEN LIMITED v ZHAO AND ANOTHER [2017] NZCA 227 [31 May 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA496/2016[2017] NZCA 227BETWEEN GOLDEN GARDEN LIMITEDAppellantAND HONGWEI ZHAO AND ZHIDONGHUANGRespondentHearing: 2 May 2017Court: Miller, Gilbert and Katz JJCounsel: W McCartney for AppellantM Lenihan for RespondentsJudgment: 31 May 2017 at 11.00 amJUDGMENT OF THE COURTA The application for leave to adduce further evidence is granted.B The appeal is allowed. The judgment entered in the High Court is set aside.C The appellant is entitled to costs as for a standard appeal on a band A basisand usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)Introduction[1] Golden Garden Ltd appeals against a decision of Associate Judge Bell grantingsummary judgment on a claim by Hongwei Zhao and Zhidong Huang (the vendors)for the sum of $730,000, being the deposit payable under an unconditional agreementfor sale and purchase of a property in Kumeu for $7.3 million.1 Golden Gardencontends that the vendors' agent knew that it was only prepared to purchase theproperty subject to conditions as to finance and due diligence and the agent misled itinto believing that the agreement she presented for signing contained these conditions.Golden Garden claims that the vendors are not entitled to enforce the agreement inthese circumstances.[2] The Associate Judge found that Golden Garden did not have an arguabledefence to the claim based on the plea of non est factum, concluding that the evidencefiled on its behalf could be disregarded as being implausible and the defence would beprecluded by negligence in any event.2[3] There are two principal issues to consider:(a) If Golden Garden's evidence were to be accepted at trial, would itprovide an arguable defence to the claim?(b) If so, does Golden Garden's evidence meet the threshold of credibilitysuch that it cannot safely be disregarded and judgment entered withouta trial?[4] Golden Garden has applied for leave to adduce further evidence in support ofits appeal, and this evidence is relevant to both questions.[5] We start by summarising the evidence given on behalf of Golden Garden in theHigh Court and the Associate Judge's reasons for concluding that there was noarguable defence to the claim. We then consider the application to introduce further1 Zhao v Golden Garden Ltd [2016] NZHC 2204.2 At [29] and [37].evidence in support of the appeal. Finally, we assess whether there is an arguabledefence to the claim by considering the two questions posed above.Golden Garden's evidence in the High Court[6] Meihong Kong is the sole director of Golden Garden. She was referred to inthe correspondence and in the High Court by her married name, Mrs Liang. We willdo the same.[7] Mrs Liang completed the only substantive affidavit filed in the High Court inopposition to the application for summary judgment. The affidavit is written inMandarin and was prepared based on instructions Mrs Liang gave to her solicitor inMandarin as translated through an interpreter. The interpreter provided an affidavitconfirming this and the accuracy of his translation of the affidavit into English.[8] Mrs Liang says in her affidavit that she does not read, write or speak English,nor does she understand spoken English. She says that her daughter often translatesfor her. However, Mrs Liang says that she is able to read and write English numerals.[9] Mrs Liang explains that her interest in the Kumeu property came about duringthe course of her purchase of another property, in Silverdale, that was shown to her bythe same real estate agent. She says that when she viewed the Silverdale property sherecognised the vendors' agent as someone she had met previously at a mutual friend'shouse. Mrs Liang says that the agent knew that she could not speak or read Englishand all of their discussions were conducted in Mandarin. Mrs Liang says that the agentexplained in Mandarin the agreement to purchase the Silverdale property before shesigned it. This was at a meeting that commenced around midday on 6 April 2016 atMrs Liang's restaurant. This agreement was unconditional and the purchase price was$3.38 million.[10] After signing the agreement for the Silverdale property, Mrs Liang says thatthe agent invited her to submit a tender for the Kumeu property which had an askingprice of $8 million. The agent told her that tenders were closing that day. Mrs Liangsays that she told the agent that she was not interested in purchasing the property anddid not have enough money to buy it. However, Mrs Liang says that the agent pleadedwith her to submit a tender as a favour to her because she had only been in the industryfor a couple of years and it would give her an opportunity to meet the vendor andextend her contacts and client base. Mrs Liang claims that the agent told her that theKumeu property would not sell unless the price was over $7.5 million and that it wouldtherefore be safe to offer this amount without being at risk of winning the tender.Mrs Liang says that she agreed to tender $7.3 million on three conditions. First, thepurchase would be conditional on satisfactory completion of due diligence within20 working days. Second, the agreement would be conditional on finance beingarranged before August 2016. Third, settlement of the purchase was to be deferred for12 months.[11] Mrs Liang says that the agent used scissors to cut out some pre-printed clausesand then glued these onto the tender document. The agent also filled in the otherdetails, including the settlement date in 12 months' time. Mrs Liang says that the agentexplained the details to her in Mandarin and that she relied on her explanation insigning the tender.[12] The agent asked for a cheque for $730,000, being the 10 per cent deposit.Mrs Liang says that the agent wrote on the cheque butt exactly what she wanted her towrite on the cheque. Mrs Liang says that she copied this writing when filling out theGolden Garden cheque. Mrs Liang claims that although she completed and signed thecheque, she told the agent at the time that there was not enough money inGolden Garden's account to cover it.[13] Mrs Liang says that the agent called her that afternoon and asked her if shewould agree to bring the settlement date forward to June 2016 and increase the price.Mrs Liang says that she was not prepared to increase the price but accepted the changeto the settlement date, reasoning that it would be safe for her to do so because the pricewas low and she would remain protected by the conditions. The agent told her thatshe would send her a text asking for confirmation by reply text.[14] Mrs Liang says that she got a text from the agent at 2.25 pm but it was inEnglish and she could not read it. However, she could see the date "2016-06-30" andunderstood that this was the new settlement date, as discussed. Mrs Liang sent a replytext at 2.55 pm saying in Mandarin "confirmed". She says that this was to confirm thechange to the settlement date as discussed in the earlier conversation and was not aresponse to the substance of the text because she could not read it. Mrs Liang saysthat she did not appreciate at the time that the text read as follows:Revised offer on 116 Station Road, KumeuDear Mrs LiangPlease confirm through email on our revised offer:Unconditional$7.3MM10% deposit payable to Barfoot & Thompson trust account on acceptanceSettlement: 2016-06-30Once get your confirmation, I will go to present to vendor in the office now.Cheers[Vendors' agent][15] While Mrs Liang was having dinner with friends at her restaurant that evening,the agent brought in the agreement for her to sign. Mrs Liang says that the agent toldher that the only change was to the settlement date. Mrs Liang says she asked wherethe tender document was. She says the agent told her that because the originaldocument was untidy, it had been replaced. Mrs Liang says that she signed theagreement on the basis of the agent's assurance that it was on the same terms as thetender apart from the settlement date.[16] The agent sent Mrs Liang an email at 8.26 pm congratulating her on winningthe tender and attaching a copy of the agreement which by then had been signed by thevendors. Mrs Liang says that she did not see this email at the time but her daughtertranslated it for her later.[17] At about 9.00 pm that same evening, the agent came to the restaurant and toldMrs Liang that she had won the tender and that the agreement was unconditional.Mrs Liang says that she was not happy. She restated that she never intended to buythe property and noted that the agent had not even taken her to see it.3 Mrs Liang askedhow the agreement had become unconditional when she had put conditions in the3 Mrs Liang acknowledges that another agent had pointed the property out to her some weeks earlierwhile driving to another property but she says that this was as close as she had ever been to it.tender. Mrs Liang claims that the agent did not answer this question. Instead, sheattempted to reassure Mrs Liang that the purchase was a bargain and stated that theland was ready to be subdivided. According to Mrs Liang, the agent said that she couldsell the property again if she did not want it. Mrs Liang says that she told the agentthat she did not intend to buy the property and that the vendors should accept the nexthighest bid.[18] The agent emailed her manager that evening saying:I just got the phone call from my purchaser just now, explaining that theyrealized it would be very difficult for them to get the settlement money readyby the contract time 06-30-2016.As there are another multi-offer for 116 Station Road today; my purchaser isasking can they cancel the contract today? And the vendor can choose the2nd preference offer.Apologize for the urgent communication from my buyer.Please help to communicate with the vendor on this and let us know as soonas you are available.[19] Mrs Liang says that at 10.00 pm she called the agent again and asked her tocontact the vendors immediately and cancel the agreement. She repeated that she hadmade a conditional offer, not an unconditional offer, and she did not have the moneyto buy the property. Mrs Liang says that she sent a text at 10.27 pm again asking theagent to cancel the agreement and followed this up with a further text at 7 o'clock thefollowing morning.[20] The manager responded to the agent on 7 April 2016 and this was forwarded toMrs Liang at 8.14 am:No, they have an offer in place that has been accepted by the Vendor at the multi offer.Their offer was the most acceptable to him.The deposit cheque needs to be banked into the Barfoot and Thompson Trust accounttoday. If the settlement date is to[o] early for them they can discuss between thesolicitors to see if an extension is at all possible.[Agent's name] these things need to be worked out before a purchaser puts an offer toa Vendor, not after it has been accepted.I trust they can work hard and get everything in place for the existing time lines on thecontract.[21] Mrs Liang says that after her daughter translated this email to her, she felt thatshe had been "cheated". She sent a text to the agent asking her to send a copy of thetender document, but she received no reply and the tender has never been produced.[22] There were insufficient funds in Golden Garden's account and thecheque for the deposit was dishonoured. The vendors cancelled the agreement on14 April 2016.[23] The vendors re-sold the property after these proceedings commenced for$7,025,000 but settlement is not due until 15 August 2017.[24] In seeking summary judgment, the vendors had the onus of showing that thereis no arguable defence. The notice of opposition to the application for summaryjudgment raises the defence of non est factum but the evidence may also support otherdefences.High Court judgment[25] Despite her evidence to the contrary, the Associate Judge found that Mrs Lianghas "an adequate command of the English language". This finding was based on thefollowing analysis:[26] For both her names, Mrs Liang does not write her signature in Chinesecharacters but in cursive script. The cheque she signed for the deposit is inevidence. That is in her handwriting in cursive script. That handwriting doesnot suggest that she is unfamiliar with writing English.[27] When the land agent communicated with her on 4 April 2016 she sentan information pack in English. In the land agent's evidence there are alsocopies of texts in English between the land agent and Mrs Liang. These showthe same grasp of English as shown by native speakers of English when theytext each other. That is, the language might not meet the standards ofgrammatical purists, but they are intelligible without obvious errors.[28] these matters readily show that Mrs Liang herself does have anadequate command of the English language. I bear in mind that on the dayshe had signed an agreement for the Silverdale property for some $3.3m,again, an agreement written in English. When she entered into importantcontractual arrangements, she was comfortable using English without seekingother professional assistance.[26] Next, the Associate Judge rejected Mrs Liang's explanation that she providedthe tender as a favour to the agent, regarding it as implausible:[29] Mrs Liang's explanation for providing the tender – that she was doingit as a "favour" for the land agent – is implausible. To my mind, it does notmake any sense that anyone would go through the pretence of making aserious offer in a heated property market for the purchase of a propertyavailable for development simply as an empty charade.[30] There is no dispute as to the text that the agent sent at 2:25pm on6 April 2016. The text is significant as showing the land agent'sunderstanding of the agreement which she was trying to bring about – anunconditional agreement for $7.3 million with settlement on 30 June 2016.Mr McCartney accepted that that text was not an erroneous explanation of theagreement proposed by the land agent. It also shows that Mrs Liang'sexplanation of putting up a conditional agreement without a serious intent tobuy the property does not wash. From the land agent's text it is clear that shewas working on trying to obtain an agreement unconditional at $7.3 million.The price offered by Mrs Liang also suggests a serious intent to buy theproperty at a competitive price. If Mrs Liang was only putting in an agreementto go through the motions, she would have put in an offer at a much lowersum. I do not accept her explanation. It is improbable.[27] The Associate Judge also considered that it was inconceivable that the vendors'agent would accurately summarise the terms of the proposed amended tender in thetext sent at 2.25 pm on 6 April and then give an inaccurate explanation of theagreement when presenting it to Mrs Liang for signing later that evening:[31] The text is also important when assessing Mrs Liang's evidence as tothe explanation that the agent gave when she brought the agreement forsigning. According to Mrs Liang, the agent told her that the agreement wasthe same as what she contends the tender document was, apart from the changeto the settlement date. That requires the court to accept that the agent changedher story between 2:25pm, when she gave an accurate explanation as to theagreement, and 6:00pm, when she gave an inaccurate explanation. I cannotthink of any plausible reason why the land agent would give an accurateexplanation and then change that explanation later when the agreement waspresent for signing. That aspect of the defendant's case is also implausible.[28] Finally, the Associate Judge placed considerable reliance on two textsMrs Liang sent to the agent in Mandarin seeking to withdraw from the agreement. TheAssociate Judge considered it highly significant that Mrs Liang did not specificallystate in either of these texts that she had been misled. The first of these texts was sentat 10.27 pm on 6 April 2016 and the second at 7.00 am the following morning. Theyhave been translated as follows:[P]lease cancel the contract of 116 Station Road no matter what. My husbandhad already said that a conditional contract was needed. He said that withoutgoing through the board of directors, the purchase could not be made. Neitherwould the company make payment. Please hurry up and notify the propertyowner and your agent company to handle properly. Please! Thanks sincerely.It was mainly that you called me and talked about changing to anunconditional contract. Signed without consent. He said that the rules hadbeen breached and the company would definitely not give consent.[29] After quoting these texts, the Associate Judge stated:[34] These texts and others show the real reasons for the cancellation.Mrs Liang needed the support of other investors to purchase and they had notgiven their approval. She was now trying to back out. If she had been misledas to the effect of the agreement, she should have stated so clearly. But shedid not.[30] In conclusion, the Associate Judge was satisfied on the evidence that Mrs Liangunderstood English and that she was lying in claiming otherwise:[35] I am satisfied on the evidence that Mrs Liang is much better at Englishthan she has let on in her affidavit. Her assertions of ignorance of English arebelied by contemporary documents.[31] The Associate Judge accepted that if Mrs Liang had been misled by thevendors' agent into believing that the agreement was conditional, when itwas unconditional, that could provide an arguable defence based on the plea ofnon est factum. Nevertheless, for the reasons given, he concluded that Mrs Liang'sevidence that she had been misled could be disregarded as simply not credible.[32] In any event, the Associate Judge considered that the defence of non est factumwould fail because Mrs Liang did not take reasonable care in signing an agreement shedid not understand:[37] In any event, for the defence to be arguable, Mrs Liang has to havetaken all reasonable care in the circumstances. It is not sufficient for hersimply to say that she trusted the land agent. The land agent, after all, wasacting for the vendors in trying to obtain an agreement for sale and purchase.[33] The Associate Judge summarised his conclusion that the defence was notarguable as follows:[39] Weighing up Mrs Liang's evidence, in the light of contemporarydocuments and the circumstances, I find improbability piled uponimprobability. I do not accept that the company has any show at all of arguingfor a defence of non est factum. The defence is not tenable and accordinglythe plaintiffs succeed on the application for summary judgment.Application for leave to adduce further evidence[34] Mr McCartney applies for leave to adduce six further affidavits in support ofMrs Liang's appeal, including one translating a further affidavit from Mrs Liang. Thisevidence suggests that the evidential findings made by the Associate Judge,particularly as to Mrs Liang's understanding of English, are unsafe. Mr McCartneysubmits that the affidavits should be admitted in the interests of justice, especiallygiven that the relevant findings were partly based on reply evidence from the agent towhich Mrs Liang had no right to respond.[35] Mr Lenihan opposes the application, arguing that the evidence is not fresh,credible, or cogent. He submits that even if the further evidence is taken into account,there is still no arguable defence.[36] In her further affidavit, Mrs Liang maintains that she can only speak a fewwords in English like "hello", "goodbye" and "thank you" and cannot speak orunderstand whole sentences. Mrs Liang responds to the points made by the agent inher reply affidavit, which the Associate Judge appears to have placed some relianceon, as follows:(a) Information pack in English – Mrs Liang accepts that she received aninformation pack from the agent in English on 4 April 2016. However,she says that she relies on her daughter to translate documents sent toher in English.(b) Signature in cursive script – Mrs Liang explains that in China there isan official phonetic language called "Pinyin" which uses Englishcharacters taught at schools. She claims that she, like most people inChina, can write their own name using English characters whether ornot they can read or write English. She says that she signs using thename "Hong" which is her maiden name.(c) Writing on cheque – Mrs Liang repeats her earlier evidence that whenshe completed the cheque she copied the words written out for her onthe cheque butt by the agent. She explains that she studied calligraphyin China and is good at copying foreign writing even though shedoes not understand the words. She now understands that she madesome errors in this copying process, as identified by Mr McCartney("Bafoot & Thomsin" or "Bafurt & Thomsin" instead of Barfootand Thompson and "seven hundreen thre thousand dollar only" or"seven hundreen threty thousand dollmr oily" instead of seven hundredand thirty thousand dollars only).(d) Texts between Mrs Liang and the agent in English – Mrs Liang claimsthat there are no texts written by her in English and none have beenproduced by the agent. She acknowledges that some emails werewritten in English but says that these were typed for her by her daughter.(e) Silverdale agreement written in English – Mrs Liang says that she hasnever signed an agreement written in English without assistance fromsomeone who can translate it for her. She repeats that she relied on theagent to explain the agreement to purchase the Silverdale propertybefore she signed it.(f) Text from agent at 2.25 pm on 6 April 2016 – Mrs Liang says that thiswas the only text the agent sent that day in English. When she repliedin Mandarin "confirmed", she thought that she was only confirming thechange to the settlement date because that was what had been discussedin the earlier telephone discussion conducted in Mandarin.(g) Price offered – Mrs Liang reiterates that she understood from the agentthat any offer would need to exceed $7.5 million to be successful. Shesays that she also thought that the finance and due diligence conditionsmeant that Golden Garden would only have to proceed with thepurchase if there were investors willing to fund it and if due diligenceestablished that it was worth proceeding.(h) Implausible that the agent would summarise the agreement correctly inher text in English at 2.25 pm and give a different explanation inMandarin when the agreement was signed at 6.00 pm – Mrs Liangmaintains that she did not understand the text in English and the agentassured her before she signed the agreement that the only change fromthe tender was to the settlement date.(i) Real reason for cancelling was that she could not get support from otherinvestors – Mrs Liang maintains that her offer to purchase the propertywas subject to finance and she claims she was entitled to cancel.[37] Mrs Liang's daughter, Megan Liang, who is a teacher, has completed anaffidavit stating that her mother is not literate in English. She says that she usuallymanages her mother's emails, although other people sometimes help when she is notavailable. She confirms that the emails produced by the agent in her reply affidavit,which are in English, were typed by her. She states that she read the information packsent by the agent relating to the Silverdale property and explained it to her mother. Sheconfirms her mother's evidence that she agreed to submit the conditional tender for theKumeu property as a favour to the agent. She also says that she was not present whenthe text in English was sent by the agent at 2.25 pm on 6 April, nor when her mothersigned the agreement that evening. She confirms that her mother can sign her nameusing English characters in Pinyin. She also confirms that her mother studiedcalligraphy and is good at copying letters.[38] Anna Lin, a student at the University of Auckland studying arts and law, hasalso completed an affidavit. She says that she was employed by Mrs Liang as awaitress at the Golden Garden restaurant during 2015. She says that Mrs Liang cannotspeak, read or write English. She confirms that Mrs Liang can say a few simple wordsin English like "hello" or "thank you" but she cannot communicate in any substantiveway in English. Ms Lin says that she used to translate emails sent to Mrs Liang inEnglish because Mrs Liang could not read them herself. She said that she helped herwith online banking because Mrs Liang could not read the bank's website which wasin English. Finally, Ms Lin states that many Chinese speaking people can write inPinyin.[39] Sylvia Williams, a real estate agent, has provided a brief affidavit stating thatshe has dealt with Mrs Liang on a number of occasions and believes that she iscompletely illiterate in English. In all her dealings with Mrs Liang, Ms Williams hasused a Chinese colleague as a translator.[40] Finally, Xiaoman Cui, a bank manager, has provided an affidavit stating thatshe has known Mrs Liang for about five years, both socially and professionally. Sheconfirms that Mrs Liang cannot understand spoken English and cannot speak, read orwrite in English. Ms Cui says that her husband cannot speak Chinese and can onlycommunicate with Mrs Liang through an interpreter. She also confirms the evidenceof the other deponents that it is common for Chinese to learn to write Pinyin.[41] Although this evidence is not fresh in the sense that it could not have beenobtained prior to the hearing in the High Court, we bear in mind that Golden Gardenhad no right to respond to the agent's reply affidavit. We accept Mr McCartney'ssubmission that this is a reasonable explanation for Golden Garden not filing theevidence earlier. We consider that the evidence is credible. It is also cogent. Itsupports Mrs Liang's account that she does not understand English, contrary to theAssociate Judge's finding. This finding was a key factor in the Associate Judge'sanalysis and decision. The evidence also provides some support for other aspects ofMrs Liang's account, which the Associate Judge dismissed as being implausible. Forthese reasons, we are satisfied that the application for leave to introduce this furtherevidence should be granted in the interests of justice.If Golden Garden's evidence were to be accepted at trial, would it provide anarguable defence to the claim?[42] Mrs Liang's evidence is that the agent explained the tender document to herbefore she signed it and that it recorded an offer that was conditional on due diligenceand finance, with settlement deferred for 12 months. This evidence is supported byMrs Liang's daughter. It seems odd that the vendors' agent has been unable to producethis important document. However, if it could be established that the tender did containthese conditions, this would support Golden Garden's case that Mrs Liang was notnegligent in signing the tender even though it was written in a language that she didnot understand.[43] Mrs Liang claims that all of her discussions with the agent were in Mandarinand that she cannot understand English. She says that the agent spoke to her inMandarin requesting only one change to the tender, to bring forward the settlementdate. Mrs Liang says that the agent told her that she was going to send a text to gether confirmation of her agreement to this change. If this evidence is accepted, thatwould raise a question as to why the agent would send her a text written in Englishrecording not only the change to the settlement date but also that the agreement wasunconditional. Mrs Liang's evidence is that she signed the replacement agreement inreliance on the agent's assurance that the only change from the tender was to thesettlement date.[44] If all of this evidence is accepted, it is at least arguable that Mrs Liang wasentitled to rely on the agent's assurance and was not negligent in signing the agreementon that basis. Mr Lenihan responsibly conceded this. We respectfully disagree withthe Associate Judge's conclusion that Mrs Liang was not entitled to trust the agentbecause she was acting for the vendors.4[45] It follows that if all of Golden Garden's evidence is accepted, it could providean arguable defence to the claim based on the plea of non est factum: the documentwas of a fundamentally different character from that intended by Golden Garden;Mrs Liang was arguably not negligent in signing the agreement because she wasentitled to rely on the agent's explanation of it; and Mrs Liang was arguably misled bythe vendors' agent as to the effect of the agreement. At this preliminary stage, we couldnot safely exclude the possibility of other defences succeeding, includingmisrepresentation, breach of the Fair Trading Act 1986 or even, perhaps, mistake.4 Zhao v Golden Garden Ltd, above n 1, at [37].Does Golden Garden's evidence meet the threshold of credibility?[46] The principal reason given by the Associate Judge for rejecting Mrs Liang'sevidence as failing to meet the threshold of credibility was his finding that Mrs Lianghas "an adequate command of English" and was "comfortable using English" when"she entered into important contractual arrangements" "without seeking otherprofessional assistance".5 For the reasons given, we are satisfied that this finding couldnot be made in the context of the contested application for summary judgment and hasbeen shown to be unsafe. If this central premise is removed, the supporting reasonsfor disregarding Mrs Liang's evidence as being implausible lose some of their potency.[47] Mrs Liang's daughter confirms her mother's explanation that she submitted thetender as a favour to the agent. This evidence will no doubt be subjected to challengebut we are not persuaded that it can be summarily dismissed at this stage as beingcompletely implausible. Such an explanation might be plausible if it is established attrial that the tender contained the conditions asserted by Mrs Liang as to due diligenceand finance; provided for settlement to be deferred for 12 months; and was pricedmaterially below what she realistically considered the property would sell for basedon what the vendors' agent told her. We do not consider that it was safe to conclude,as the Associate Judge did, that "the price offered by Mrs Liang also suggests a seriousintent to buy the property at a competitive price".6 The price tendered needs to beviewed in the context of the other three conditions which, taken together, would makethe offer far less attractive to the vendors and considerably less risky forGolden Garden.[48] We agree with the Associate Judge that the text sent by the agent to Mrs Liangat 2.25 pm on 6 April presents a considerable challenge for Golden Garden because itrecords that the revised offer is unconditional. However, if it is proved that Mrs Liangdoes not understand English and the agent knew this, and the agent also knew thatMrs Liang was relying on her to explain the agreement, then this would raise thequestion as to why the agent sent this important text in English.5 At [28].6 At [30].[49] The final reason given by the Associate Judge for dismissing Mrs Liang'sevidence as implausible was her failure to state that she had been misled in two textsshe sent after discovering that the agreement was unconditional.7 Again, this is amatter that will no doubt be explored at trial but it is not a sufficient reason to rejectMrs Liang's account summarily. Mrs Liang claims that when she discovered that theagreement was unconditional, she immediately said to the agent at the restaurant thatshe never intended to buy the property and asked how the agreement becameunconditional when she had put conditions in the tender. It appears that there wereother communications between Mrs Liang and the agent that evening. The fact thatneither of the texts contains an express allegation that Mrs Liang was misled does notmean that her account is completely untenable. The texts can be read in a way that isconsistent with Mrs Liang's account.[50] In summary, we are satisfied that Mrs Liang's evidence, supported by thefurther evidence introduced on appeal, cannot safely be disregarded as failing to meetthe threshold of credibility. The vendors' claim cannot be determined withoutresolving the critical evidential contests. This can only be done at trial.Result[51] The application for leave to adduce further evidence is granted.[52] The appeal is allowed. The judgment entered in the High Court is set aside.[53] The appellant is entitled to costs as for a standard appeal on a band A basis andusual disbursements.Solicitors:Carson Fox Legal, Auckland for AppellantDT Lawyers Limited, North Harbour for Respondent7 At [34].