Bank of New Zealand v Huang

[2018] NZHC 1465

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000803

[2018] NZHC 1465

BETWEEN

BANK OF NEW ZEALAND

Plaintiff

AND

JING HUANG

First Defendant

BENJAMIN BAN CHONG BONG and
JING HUANG as trustees of THE HUANG FAMILY TRUST

Second Defendants

Hearing:

19 June 2018

Counsel:

S M Brown for the Plaintiff

No appearance by or on behalf of the First Defendant
No appearance by or on behalf of the Second Defendants

Judgment:

19 June 2018

JUDGMENT OF WOOLFORD J

Solicitors:           Buddle Findlay, Auckland

BANK OF NEW ZEALAND v HUANG [2018] NZHC 1465 [19 June 2018]

[1]    This is the first call of an application for summary judgment. The Bank of New Zealand (the Bank) seeks judgment in  the  sum  of  $4,547,165.08  against  Jing Huang personally and against Jing Huang and Benjamin Ban Chong Bong as trustees of The Huang Family Trust.

[2]    In August 2013, the Bank entered into a Trade Finance Facility agreement with Greenmark Wholesaler (NZ) Limited of which Mr Huang was a director. The company’s obligations under the Trade Finance Facility were secured by a guarantee for an unlimited amount from Mr Huang and a guarantee for an unlimited amount from the Huang Family Trust supported by a registered mortgage over Mr Huang’s house at 12 Bejoy Rise, Dannemora. The company subsequently began drawing down under the Trade Finance Facility.

[3]    The Trade Finance Facility was increased from its initial limit of $2.2 million to $3 million in January 2014 and then to $6.5 million in October 2014. The company had various other facility agreements with the Bank. It also operated various accounts with the Bank.

[4]    By May 2017 the arrears owing by the company under the Trade Finance Facility, another facility agreement and a bank account amounted to $702,898.60. Formal demand was made of the company, Mr Huang and the Huang Family Trust, the latter two as guarantors. The demand was not met.

[5]    On 15 May 2017 the Bank placed the company into receivership. On or about 18 July 2017 the total amount owing under the Trade Finance Facility, various other facilities and bank accounts was $6,053,004.97. The Bank subsequently realised property of the company subject to its security and arranged for the sale of Mr Huang’s home at 12 Bejoy Rise. The amount realised was $1,529,711.33. This sum has been deducted from the total amount owing.

[6]    On or about 14 March 2018 the total amount owing was $4,446,472.60. On that date, the Bank sent Mr Huang and the trustees of the Huang Family Trust as guarantors, formal demands for immediate payment. Mr Huang and the trustees of the Huang Family Trust have failed or refused to pay the amount outstanding.

[7]    These proceedings have subsequently been issued. Mr Huang has been unable to be located and served personally with them. He is believed to be in China. An order for substituted service was granted by the High Court on 3 May 2018, directing service by:

(a)emailing a copy of the documents to Mr Huang’s hotmail address;

(b)delivering a copy of the documents to Mr Bong; and

(c)publishing a notice in the Public Notices section of the New Zealand Herald newspaper.

These have all been undertaken. Mr Bong was also served with the documents in these proceedings in his capacity as a trustee of the Huang Family Trust.

[8]    There is no appearance today by or on behalf of either Mr Huang or Mr Bong. The application for summary judgment is, therefore, undefended.

[9]    I am satisfied that there is no defence to the Bank’s claim and accordingly there will be judgment against both Mr Huang as first defendant and Mr Huang and       Mr Bong as trustees of the Huang Family Trust as second defendants in the sum of

$4,446,472.60, being the amount claimed against the defendants in the statement of claim as at 24 April 2018, plus interest of $100,692.48 at 8.61 per cent per annum on the amount of $4,446,472.60 outstanding under the Trade Finance Facility from 15 March 2018 to 18 June 2018 (being 96 days at rate of $1,048.88 per day). The total judgment sum is therefore $4,547,165.08.

[10]   The plaintiff is also entitled to solicitor/client costs in the sum of $9,277.20 and disbursements in the amount of $2,430.60 in accordance with the memorandum of solicitor-client costs and the memorandum of calculation dated 18 June 2018.

Woolford J