IN THE Supreme court OF new Zealand

I TE KŌTI MANA NUI O AOTEAROA	
 SC 66/2022
 [2022] NZSC 107	

	
BETWEEN	
WENJING LIU
Applicant	
	
AND	
FUTURE SUSTAINABLE DEVELOPMENT LIMITED
Respondent	

Court:	
Glazebrook, O’Regan and Ellen France JJ 	

Counsel:	
D K Wilson for Applicant
R J Hollyman QC and N G Lawrence for Respondent	

Judgment:	
7 September 2022	

JUDGMENT OF THE COURT

A	The application for leave to appeal is dismissed.

B	The applicant must pay the respondent costs of $2,500. 
____________________________________________________________________

REASONS
[1]	The applicant applies for leave to appeal against a decision of the Court of Appeal.
Background
[2]	The dispute between the parties relates to one of the special conditions, cl 20.3, in an agreement for sale and purchase of residential land.  Clause 20.3 provides:
This agreement is conditional upon the Purchaser, the Purchaser’s investor and/or its nominee obtaining an OIA consent to purchase the land under the Overseas Investment Act 2005 (OIA).
[3]	The applicant (the vendor) gave notice cancelling the contract and subsequently sought a declaration that the contract had been validly cancelled for non‑fulfilment of the condition.  The respondent (the purchaser) had purported to waive the condition before the final date for its fulfilment.  
[4]	The High Court held that cl 20.3 was not capable of being waived by the respondent and that therefore the applicant was entitled to avoid the agreement.
[5]	The Court of Appeal held that the clause was inserted for the sole benefit of the respondent.  It was therefore entitled to waive the condition and the applicant was not entitled to cancel.  An order for specific performance was made. 
[6]	The clause was inserted against the background that the respondent could nominate a person requiring OIA consent as purchaser.  The respondent does not require OIA consent.  
Our assessment
[7]	The appeal is related to the interpretation of the clause in the contract between the parties and thus relates to the particular facts of the case.  There is no point of general or public importance.  There is also no risk of a miscarriage of justice.  The respondent does not require OIA consent and there can therefore be no consequences for the applicant from the respondent failing to obtain such consent. 
Result 
[8]	The application for leave to appeal is dismissed.
[9]	The applicant must pay the respondent costs of $2,500.

Solicitors: 
Churton Hart & Divers, Auckland for Applicant
PCW Law, Auckland for Respondent