Geng v Mai

[2016] NZHC 629

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-682 [2016] NZHC 629

BETWEEN

PENGCHENG GENG

Plaintiff

AND

ZILI MAI AND JING PAN Defendants

Hearing:	11 April 2016
Counsel:	DA Wood for plaintiff No appearance for defendants
Judgment:	11 April 2016

(ORAL) JUDGMENT OF FAIRE J

Solicitors:           Jenny Wang & Associates, Auckland (J Richards)

Geng v Mai [2016] NZHC 629 [11 April 2016]

[1]      This  is  an  application  originally  filed  on  a  without  notice  basis  seeking injunctive relief by the plaintiff.

[2]      Davison J, in a minute issued last Friday, recorded as follows:

[6]       Having  reviewed  the  application  and  supporting  affidavit  of  the plaintiff, it is clear that the matter is not of the urgency that requires a decision today, being Friday 8 April 2016.  Accordingly I direct that the file be placed into the Duty Judge list during the week of Monday 11 April 2016 and that counsel for the plaintiff and defendants be notified and be required to attend.

[3]      Mr Wood, who appears as counsel for the plaintiff today, has provided me with email exchanges that he has had with the solicitor who acts for the defendants, who are the vendors in the relevant sale and purchase contract.  They indicate that they have no instructions to accept service of the application and therefore do not appear on the defendants’ behalf today.  The defendants have been called and have not entered an appearance.

[4]      The  plaintiff’s  interlocutory  application  seeks  an  order  that  a  settlement notice, dated 24 March 2016, be set aside.   The backing sheet describes the application as an ‘interlocutory application for injunction without notice’.

[5]      The real issue involved in this case is whether the plaintiff is entitled to a refund of deposit paid in a sale and purchase contract.  I have considered the facts very carefully.   It is difficult to  see how the plaintiff would not be adequately compensated by an award of damages for the loss sustained, ie the loss of the deposit, in this case.  It seems to me, therefore, that an interlocutory injunction is not appropriate.1

[6]      What this case needs is a statement of claim that pleads circumstances which justify the return of the deposit.  That, in fact, will cover the items that are mentioned in the application and the statement of claim, which is currently filed.   Mr Wood confirms to me that his clients are in a position to instruct him to file and serve same

by Thursday of this week, that is, 14 April 2016.  An amended statement of claim,

1      American Cyanamid Co v Ethicon Ltd [1975] AC 396, [1975] 1 All ER 504 (HL).

which seeks as its principal relief, the return of the deposit, shall be filed and served by 14 April 2016.

[7]      The effect of that is that the defendants will have 25 working days to file their statements of defence and, if they do, the Registrar can allocate a case management conference so that this matter can be brought on for hearing as soon as interlocutory matters are completed.  That seems to me to address the principal concerns which the plaintiff has in this case.

[8]      Accordingly, I make the following orders:

a)        The application for an interlocutory injunction is refused;

b)The plaintiff shall file and serve an amended statement of claim as indicated in this judgment, by 14 April 2016;

c)       Thereafter,  if  a  statement  of  defence  is  filed,  the  Registrar  shall allocate a case management conference and notify the parties accordingly;

d)If a statement of defence is not filed, the plaintiff may pursue the remedies available to it pursuant to the High Court Rules and seek a formal proof hearing.

Costs

[9]      I reserve costs, which can be considered at a later time when all parties are before the court, if that is appropriate, or, alternatively on determination of a formal

proof application for judgment.

JA Faire J