Du v Gu - [2012] NZHC 3123

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-5577 [2012] NZHC 3123

BETWEEN XING HUA (DAVID) DU Plaintiff

ANDMING GU Defendant

Hearing: 22 November 2012

Appearances: Plaintiff in person
G Blanchard for Defendant

Judgment: 22 November 2012

JUDGMENT OF BREWER J

SOLICITORS/COUNSEL
Ross Holmes Lawyers (Auckland) for Defendant
(Copy to Plaintiff in person)

COUNSEL Greg Blanchard

XING HUA (DAVID) DU V MING GU HC AK CIV-2009-404-5577 [22 November 2012]

[1] Mr Du applied for a freezing order on a without notice basis. The application came first before Venning J on 30 October 2012 as the Duty Judge. As Venning J said on that occasion, this case has a complicated procedural background. It relates to the development of a property at 7 Lakeridge Close, Albany. The plaintiff alleged there was a joint venture between him and the defendant, Madam Gu, to develop that property. The plaintiff says he made several payments to contribute to its development.

[2] In this Court, the plaintiff succeeded initially in his argument in relation to the joint venture. The Court of Appeal overturned the decision of this Court,[1] primarily on the basis that the plaintiff is a real estate agent and was at the time in breach of the Real Estate Agents Act 1976. The Court of Appeal did, however, permit the plaintiff to file an amended statement of claim to claim the repayments of amounts contributed to the property.

[1] Ming Gu v Xing Hua (David) Du [2011] NZCA 577.

[3] The situation now is that this claim by the plaintiff for repayment of the amounts contributed to the property remains unresolved. It has been commented that the plaintiff has been dilatory in pursuing his claim, which to this point remains unquantified in the formal pleadings. Mr Blanchard, for the defendant this morning, has told me that in fact it is his client who is pushing for the proceeding to be heard. This is on the basis that whatever the claim turns out to be, it is likely to be disputed as to quantum.

[4] Venning J made a temporary freezing order which was due to expire on

8 November 2012. He did so because he accepted that the plaintiff has a good arguable case against the defendant in relation to whatever contributions he made to the property. The crucial point, of course, was whether the plaintiff could show a risk of dissipation. Venning J noted the settled law that affirmative proof of the
likelihood of dissipation is not necessary.[2] Venning J had regard to the fact that the
[2] BNZ v Hawkins (1989) 1 PRNZ 451.

subject property is registered in the name of the defendant and it appeared to him that since the defendant is resident out of New Zealand there could be said to be a
thin risk of dissipation. Venning J made the freezing order temporary, with the

direction that the plaintiff was to provide an affidavit of means to support the undertaking as to damages he had provided…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Du v Gu

Details

AGLC: Du v Gu [2012] NZHC 3123
Case: [2012] NZHC 3123
Decision Date: 22 November 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Xing Hua (David) Du, the plaintiff, sought a freezing order against Ming Gu, the defendant, on a without notice basis. The plaintiff and defendant were involved in a joint venture to develop a property at 7 Lakeridge Close, Albany. The plaintiff alleged that he had made several payments to contribute to the property's development and sought repayment of those contributions. The legal issues the court was required to decide were whether the plaintiff had a good arguable case against the defendant and whether there was a risk of dissipation of the defendant's assets. The court found that the plaintiff had a strong claim to recover proven contributions to the property, but the risk of dissipation was not sufficient to justify a freezing order. The court discharged the freezing order and awarded costs to the defendant.

The court noted that the plaintiff had a good arguable case against the defendant in relation to the contributions made to the property. However, the court found that there was not a sufficient risk of dissipation to justify a freezing order. The subject property was the defendant's only asset in New Zealand and was a family home. The defendant spent significant time each year living in the property with her family and had no intention of selling it. The court accepted that if the property were sold and the monies sent to China, the plaintiff's rights in New Zealand could be set at naught. However, the court found that the risk of dissipation was not sufficient to justify a freezing order at that time. The court discharged the freezing order and awarded costs to the defendant. The court noted that if the defendant were to put the property on the market for sale, the plaintiff would be entitled to apply again for a freezing order.

Orders