Estate of Lu - [2020] NZHC 2416

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000696

[2020] NZHC 2416

UNDER the Insolvency Act 2006

AND

IN THE MATTER OF

an application by JIANPING WANG, company director, of Christchurch, for an order that the deceased estate of JIHONG LU be administered by an appointee under Part 6 of the Insolvency Act 2006

Hearing: On the papers

Counsel:

G E Slevin for Applicant

A L Harlowe for Mr Bin Lu, an Interested Party
K G Davenport QC for Ms Weihua Zhang, an Interested Party

Judgment:

16 September 2020

JUDGMENT OF WYLIE J
[Application for leave to appeal]

This judgment was delivered by Justice Wylie On 16 September 2020 at 4.00 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Davidson Legal/R B Stewart QC and G Slevin, Christchurch Couch Harlowe Kovacevich/Ben Liu & Co, Auckland
K Davenport QC and A E Isaacs, Auckland

Re estate of JIHONG LU [2020] NZHC 2416 [16 September 2020]

Introduction

[1] The applicant, Jianping Wang (Mr Wang), seeks leave to appeal my oral ruling of 30 July 2020 declining counsel’s application to treat an originating application filed on 7 May 2020, as also being an application that the estate of Jihong Lu (Mr Lu) be administered as an insolvent estate under Part 6 of the Insolvency Act 2006.

[2] The application for leave to appeal is opposed by Bin Lu (Mr Lu’s brother and an interested party) and Weihua Zhang (Mr Lu’s mother and also an interested party).

Factual background

[3] Mr Wang is a substantial creditor of Mr Lu, having obtained summary judgment against him in the sum of $1.5 million together with interest on 6 August 2019. Mr Wang has taken various steps to try and recover the monies owing to him. He has been partially successful but there is still a substantial sum outstanding.

[4] Mr Lu died in Taiwan on 22 January 2020. He was a New Zealand citizen. He left a will dated 7 January 2020, appointing Bin Lu as his administrator. Alternative administrators were appointed in the event that Bin Lu was unavailable. In his will, Mr Lu made provision for the distribution of his property, which he described as including real estate, securities, stock, an art collection, jewellery, etc. He directed that it was to be used to pay his funeral expenses and taxes, as well as specific various creditors who he listed. The named creditors included Bin Lu and Weihua Zhang (his mother). There was then provision for the distribution of 50 per cent of the residue of the estate to his son and daughter. The will then read as follows:

If it is insufficient an amount, my son and daughter shall each take 25% of the remaining part, and the other 50% shared by the legatees.

Eight legatees including Weihua Zhang, his nephews, his aunts, his sister-in-law and one other person, were then listed. The will then stated:

In the…

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.

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Details

Case: [2020] NZHC 2416
Decision Date: 16 September 2020

CaseChat Overview and Summary

The case involves an application by Jianping Wang, a creditor of the deceased Jihong Lu, seeking leave to appeal the High Court's decision declining to treat his originating application as also being an application for the administration of Mr Lu's estate under Part 6 of the Insolvency Act 2006. The application was opposed by Bin Lu, Mr Lu's brother, and Weihua Zhang, Mr Lu's mother. The primary legal issue was whether the High Court's decision declining to treat the originating application as an application for administration under Part 6 of the Insolvency Act was an interlocutory decision warranting an appeal. The Court needed to determine whether the decision met the high threshold required for leave to appeal under the Senior Courts Act 2016.

Justice Wylie considered the high threshold for granting leave to appeal and noted that generally, such leave should only be granted where the alleged error is of general or public importance, of sufficient importance to the applicant, or of precedential value. The Court observed that while normally a decision declining an oral application would not warrant an appeal, this case presented an arguable issue of precedential importance: whether beneficiaries and creditors named in the will should be served with an application under Part 6 of the Insolvency Act. The Court accepted that there was an arguable case that such service might not be necessary, and that the issue had not been previously resolved in New Zealand. Consequently, the Court granted Mr Wang leave to appeal the decision, subject to the condition that he apply to the Court of Appeal for the appeal to be dealt with under the fast track procedure within 10 working days of the judgment date.

The final order was that Mr Wang was granted leave to appeal the High Court's decision, provided he applies to the Court of Appeal for a fast track hearing within 10 working days of the judgment date.

Orders