Han v Xue - [2024] NZHC 64

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1717

[2024] NZHC 64

UNDER Part 18 of the High Court Rules 2016

IN THE MATTER

of a declaratory order pursuant to the Declaratory Judgments Act 1908

BETWEEN

WENNING HAN

First Plaintiff

YUNYUE ZHU
Second Plaintiff

AND

JINXING XUE

Defendant

Continued …

Hearing: 6 December 2023

Appearances:

K H Morrison and R Zhou for Wenning Han M G Kirkland for Yunyue Zhu

R J Hollyman KC and IFA Hawkins for Jinxing Xue

Judgment:

12 December 2023

Reasons:

2 February 2024

JUDGMENT OF GAULT J

This judgment was delivered by me on 2 February 2024 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

HAN v XUE [2024] NZHC 64 [2 February 2024]

Continued …

CIV-2023-404-2444

BETWEEN

WENNING HAN
Plaintiff

AND

STUART DOUGLAS ROBERTSON

First Defendant

ETHNIQ KRASNIQI
Second Defendant

MANU BHANABHAI
Third Defendant

DYER WHITECHURCH

Fourth Defendant

[1] In CIV-2021-404-1717, a proceeding brought under Part 18 of the High Court Rules 2016, the plaintiffs seek declaratory relief under the Declaratory Judgments Act 1908 that a loan agreement, guarantee and mortgage are unenforceable. These documents were executed in 2018 when a development of 13 terraced houses at 4A and 10 Abbotts Way, Remuera (the development) was at risk of being sold by a mortgagee. The defendant has counterclaimed seeking payment. This proceeding has a five-day trial commencing on 19 February 2024, which has been allocated since 29 April 2022.

[2] By interlocutory application dated 18 October 2023, the first plaintiff (Mr Han) seeks orders:

(a)that this proceeding be consolidated and/or heard together with proceeding Han v Robertson (CIV-2023-404-2444) filed in the Auckland High Court on 18 October 2023;

(b)that the trial scheduled for this proceeding commencing on 19 February 2024 be vacated.

[3] The second plaintiff in CIV-2021-404-1717 (Mrs Zhu, Mr Han’s mother-in- law) is separately represented but supports the first plaintiff’s interlocutory application.1

[4]The defendant (Mr Xue) opposes the interlocutory application.

[5] In Han v Robertson, Mr Han has commenced claims in deceit, breach of fiduciary duties and knowing assistance against four new defendants in respect of actions relating to the development that preceded the 2018 documentation in issue in CIV-2021-404-1717.

[6] At the date of the hearing, the Han v Robertson proceeding had been served on the four defendants but statements of defence were not due. In relation to the

1 On 26 January 2024, I made an order declaring that Mr Kirkland and Ms Chan have ceased to be counsel and solicitor on the record respectively for Mrs Zhu.

interlocutory application, timetable orders had been made for these defendants to file any opposition by 13 November 2023. The first and second defendants (Mr Robertson and Mr Krasniqi) had taken no steps. The third and fourth defendants (Mr Bhanabhai and his law firm, Dyer Whitechurch, who received the funds paid by the purchasers of lots in the development) abided the decision of 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.

Continue reading Han v Xue

Details

AGLC: Han v Xue [2024] NZHC 64
Case: [2024] NZHC 64
Decision Date: 12 December 2023

CaseChat Overview and Summary

The High Court of New Zealand heard an interlocutory application by Wenning Han and Yunyue Zhu, seeking consolidation of proceedings with a related action brought by Mr Han against additional defendants. The primary case, Han v Xue, involves a dispute over the enforceability of a loan agreement, guarantee, and mortgage. The applicants sought consolidation on the basis of common factual issues and to avoid inconsistent findings. The defendant, Jinxing Xue, opposed the application.

The court considered whether the criteria for consolidation under the High Court Rules were satisfied, examining the overlap in facts and the interests of justice. The court found that while there was a sufficient factual overlap, the different claims and defendants in the second proceeding, Han v Robertson, weighed against consolidation. The court also noted the potential for significant delay and prejudice to the defendant if the trial date were vacated. The court concluded that the potential prejudice to the defendant outweighed the benefits of consolidation and dismissed the application.

The court ordered that the proceedings remain separate, allowing the original trial date to proceed. The defendant was awarded costs, with the possibility of further determination if the parties could not agree on the amount.

Orders