Han v Xue

[2023] NZHC 3645

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1717

[2023] NZHC 3645

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 first plaintiff, Wenning Han M G Kirkland for second plaintiff, Yunyue Zhu

R J Hollyman KC and IFA Hawkins for defendant, Jinxing Xue

Judgment:

12 December 2023

JUDGMENT OF GAULT J

This judgment was delivered by me on 12 December 2023 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

HAN v XUE [2023] NZHC 3645 [12 December 2023]

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 (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, 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 (Ms Zhu) is separately represented but supports the first plaintiff’s interlocutory application.

[4]The defendant opposes the interlocutory application.

[5]    In Han v Robertson, CIV-2023-404-2444, 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 precede the 2018 documentation in issue in CIV-2021-404-1717.

[6]    The Han v Robertson proceeding has been served on the four defendants but statements of defence are not yet due. In relation to the interlocutory application, timetable  orders   were   made  for  these  defendants  to  file  any  opposition  by   13 November 2023.1 The first and second defendants have taken no steps. The third and fourth defendants abide the decision of the Court.

1      Minute of Woolford J dated 9 November 2023.

[7]    At the hearing on 6 December 2023, I discussed with counsel the need for an early decision given the February trial date and I indicated that due to other commitments I may need to give a results judgment this week. That has proved to be the case and I give my decision now, with reasons to follow.

Result

[8]The interlocutory application is dismissed.

Gault J

Solicitors / Counsel:

Ms K H Morrison, Ms N E Copeland and Mr R Zhou, Meredith Connell, Auckland Mr M B Kirkland, Barrister, Dunedin

Ms T Chan (second plaintiff’s instructing solicitor), Teresa Chan Law Ltd, Dunedin Mr R J Hollyman KC, Barrister, Auckland

Mr J A McMillan (defendant’s instructing solicitor) and Ms IFA Hawkins, Dentons Kensington Swan, Auckland