Gao v Starlight Capital Limited (6418392)

[2019] NZHC 3031

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2034

[2019] NZHC 3031

BETWEEN

FENG GAO as trustee of GAO AND LI FAMILY TRUST
Plaintiff

AND

STARLIGHT CAPITAL LIMITED (6418392)

Defendant

Hearing:	20 November 2019
Appearances:	No appearance for the plaintiff R M Dillon for the defendant
Judgment:	20 November 2019

ORAL JUDGMENT OF PALMER J

Counsel/Party:

R M Dillon, Auckland

Copy to:

The Plaintiff

FENG GAO v STARLIGHT CAPITAL LIMITED (6418392) [2019] NZHC 3031 [20 November 2019]

What has happened?

[1]    The plaintiff filed this proceeding in September 2019. It included what purported to be an application to set aside a Property Law Act notice and any following mortgagee sale process. The application was not in the form required by r 7.19 of the High Court Rules 2016 (the Rules). It was supported by an affidavit that said only he had reported the respondent to the Police for misleading him and “involving some serious fraud”. He only served some of the required documents on the defendant. On 22 October 2019, Downs J adjourned the proceeding for two weeks at the defendant’s request to give the plaintiff time to remedy his application.

[2]    On 5 November 2019, the plaintiff requested an adjournment due to his travel to China because of his father’s grave illness. He then did not appear at the call in the List on 6 November 2019. The defendant opposed a further adjournment on the basis the proceeding is not in the proper form and there is no pleaded basis for the plaintiff’s application. The defendant sought the proceeding be struck out. On 6 November 2019, Whata J adjourned the proceeding until today and gave the plaintiff until 5 pm Wednesday 13 November 2019 to set out his reasons why his matter should not be struck out. He made clear that, if the plaintiff did not respond, it would seem inevitable that strike-out would follow.

Submissions

[3]    On 12 November 2019, the plaintiff filed a memorandum saying he is under heavy stress with the sickness of his father. He appears still to be in China though that is not clear. He says he is awaiting a full report from New Zealand Police in order to add more grounds to, and complete, the interlocutory application. He seeks an order for a full investigation by the Police and a further call in the list in mid-December 2019.

[4]    Mr Dillon, for the defendant, correctly submits the plaintiff’s claim does not set forth any recognised basis for the relief claimed and does not extend to all the parties that have the same interest as the named plaintiff. He correctly submits the plaintiff has failed to comply with:

(a)rr 5.26 and 5.27 of the rules in not adequately stating the nature of the claim in the statement of claim and application for interlocutory relief;

(b)r 4.23 in not listing all of the trustees of the trust; and

(c)the court’s directions to date.

[5]    Mr Dillon submits the defendant is thereby prejudiced in the defence of the proceeding and in continuing the planned mortgagee sale in the shadow of an apparent attempt at a claim for relief. He submits the pleading is incoherent and the affidavit in support of the application for interlocutory relief provides no relevant evidence. He submits it should be struck out under r 7.48(2)(a), which requires that I consider doing so is just. He also submits the plaintiff has not provided initial disclosure as required under r 8.4(4), and specifies examples, and submits that constitutes another ground for striking out the proceeding.

[6]    This has been the plaintiff’s fifth opportunity to remedy a defective application and unsubstantiated claim. The plaintiff has not appeared at this call of the proceeding or the last. I strike out the proceeding under r 7.48(2)(a). I grant leave to the defendant to file and serve an application and submissions on costs within 10 working days. The plaintiff will then have 10 working days to respond if he wishes.

Palmer J