Feng v Mills - [2025] NZCA 90

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA519/2024
[2025] NZCA 90

BETWEEN	WEIQIANG FENG Applicant
AND	DAVID LAWRENCE MILLS AND FIONNA EILEEN MILLS AS TRUSTEES OF THE MILLS FAMILY TRUST Respondents

Court:	Thomas and Woolford JJ
Counsel:	T J P Bowler for Applicant K L Wendt for Respondents
Judgment: (On the papers)	3 April 2025 at 9.30 am

JUDGMENT OF THE COURT

A The application for an extension of time is declined.
BThe applicant must pay the respondents’ costs calculated for a standard interlocutory application on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Thomas J)

Mr Feng applies for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) to appeal a decision of the High Court striking out Mr Feng’s claim against the respondents and dismissing his application to set aside a bankruptcy notice.[1]

Background

[1]Feng v Mills [2023] NZHC 2674 [judgment under appeal].

The respondents, the trustees of the Mills Family Trust, agreed to sell a property at 22 Manapau St, Meadowbank, Auckland, to Mr Feng. Mr Feng nominated Mr Wang as purchaser under the sale and purchase agreement. Mr Wang then failed to settle and the respondents sold the property at a loss.[2] They sought to recover their loss by way of an application for summary judgment.
[2]We take the background from the judgment under appeal.
On 7 December 2022, Lang J granted summary judgment jointly and severally against Messrs Feng and Wang in the sum of $756,597.31.[3] Mr Feng was represented but did not take any steps to defend himself against the application for summary judgment. There was no appearance by or for Mr Wang.
[3]Mills v Feng [2022] NZHC 3278.
Mr Feng applied for a stay of execution of the summary judgment pending the respondents’ enforcement of their judgment against Mr Wang and the outcome of Mr Feng’s High Court proceeding filed on 19 April 2023 against Mr Wang, Ray White Remuera, and the respondents (the 972 proceeding). The High Court declined the application.[4]
[4]Mills v Feng [2023] NZHC 1199.
In accordance with an order for substituted service,[5] the respondents served a bankruptcy notice on Mr Feng on 2 May 2023. That day, Mr Feng filed an application to set aside the bankruptcy notice.
[5]Mills v Feng HC Auckland CIV-2023-404-212 (24 April 2023) (Minute of Associate Judge Taylor).
On 2 August 2023, the respondents filed an application to strike out the parts of the 972 proceeding that related to them. Mr Feng subsequently filed an amended statement of claim dated 6 August 2023, which continued to include the respondents.
On 26 September 2023, in the judgment under the proposed appeal, Associate Judge Taylor struck out Mr Feng’s claim on the basis that none of his arguments were tenable.[6] The Judge also dismissed Mr Feng’s application to set aside the bankruptcy notice on the basis he had no genuine…

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 Feng v Mills

Details

AGLC: Feng v Mills [2025] NZCA 90
Case: [2025] NZCA 90
Decision Date: 3 April 2025 at 9.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand was presented with an application for an extension of time from Weiqiang Feng to appeal a decision of the High Court that struck out his claim against the respondents, David Lawrence Mills and Fionna Eileen Mills as trustees of the Mills Family Trust, and dismissed his application to set aside a bankruptcy notice. The central dispute revolved around a property sale agreement where Mr Feng had nominated Mr Wang as the purchaser, but Mr Wang failed to settle. The respondents subsequently sold the property at a loss and sought to recover their loss through an application for summary judgment. The High Court granted the summary judgment against Mr Feng and Mr Wang, and later dismissed Mr Feng's application to set aside a bankruptcy notice served by the respondents.

The legal issues before the Court of Appeal were whether the interests of justice required granting an extension of time for Mr Feng to appeal the High Court's decisions. Mr Feng argued that he would be highly prejudiced without an extension, that the respondents would not be prejudiced due to the short delay, and that the respondents were partly responsible for the delay. The respondents opposed the application, highlighting the significant delay, Mr Feng's conduct in opposing enforcement steps, and the lack of merit in the proposed appeal. The Court of Appeal considered these factors and concluded that the delay was long and the reasons given for it weak. The Court found that Mr Feng's proposed appeal appeared to have no merit, as the High Court's conclusions aligned with settled law. Additionally, Mr Feng had been adjudicated bankrupt, which further diminished the prospects of a successful appeal.

In its judgment, the Court of Appeal declined the application for an extension of time. The Court found that it would not be in the interests of justice to grant the extension sought, given the significant delay, the lack of merit in the proposed appeal, and the considerable costs and efforts the respondents had incurred in obtaining and enforcing the judgment against Mr Feng. The Court ordered that Mr Feng must pay the respondents' costs calculated for a standard interlocutory application on a band A basis and usual disbursements.

Orders