Hsieh v Dreamhome Construction Group Ltd

[2025] NZHC 2243

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-004-285

[2025] NZHC 2243

IN THE MATTER OF

a breach of contract

BETWEEN

HSIN-TSE HSIEH, CHEN-YIN YANG HSIEH, and CHD TRUSTEES No. 16

LIMITED as Trustees of the HSIEH FAMILY TRUST

Plaintiffs

AND

DREAMHOME CONSTRUCTION GROUP LIMITED

First Defendant

CHENGFAN SUN
Second Defendant

BROTHERS ALUMINIUM LIMITED
First Third Party

C&Y NZ LIMITED
Second Third Party

(Continued Overleaf)

Hearing:	On the papers
Appearances:	E St John and S P Maloney for the Plaintiffs D T Broadmore and E Lee for the Defendants
Judgment:	8 August 2025

JUDGMENT OF GARDINER J

This judgment was delivered by me on 8 August 2025 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

HSIEH v DREAMHOME CONSTRUCTION GROUP LTD [2025] NZHC 2243 [8 August 2025]

DOORWAYS (2009) LIMITED (DISCONTINUED)

Third Third Party

QUALITY KITCHEN NZ LIMITED
Fourth Third Party

TANK (LAST NAME UNKNOWN)
Fifth Third Party

[1]    The plaintiffs apply to amend their statement of claim to remedy the fact that they referred to s 10, rather than s 24, of the Interest on Money Claims Act 2016  (the Act); and omitted to specify the period and the amount or rate of interest claimed. The plaintiffs seek pre-judgment interest under s 24 of the Act because the subject contracts were entered into before the Act came into force.

[2]    Section 25(1) of the Act provides that a court may not award interest under a section of the Act for a period unless the party who claims interest under the section for that period specifies the section and, as far as possible, the period in that party’s statement or notice of claim.

[3]    Additionally, if a party claims interest under certain sections, including s 24, the party must specify in their statement of claim the amount or rate of interest claimed.

[4]    However, s 25(4) states that nothing in the section prevents a court from making an award of interest where the court has at any time made or accepted an amendment to a statement of claim in accordance with the rules of the court and where the statement, as amended, complies with the requirements of s 25(1) and (2).

[5]    The defendants oppose the plaintiffs’ application. They say that a post-judgment application to amend the pleadings for the purpose of s 25(4) of the Act should be permitted only where the judgment reserves the issue of interest. Furthermore, the necessary amendments are more than “minor”, and require amendments to the pleadings and further evidence given the discretionary nature of pre-judgment interest under s 24 of the Act. They argue that it would be unjust and prejudicial to the defendants to grant leave permitting the amendment as, had the defendants had notice of the plaintiffs’ claim for pre-judgment interest, there would have been additional issues for determination at trial, including whether or not pre-judgment interest ought to be granted at all, and if so, on which amounts, from what dates, and at what rates.

Discussion

[6]I will allow the amendment for the following reasons.

[7]    Section 25(4) permits an amendment to the statement or notice of claim or counterclaim to enable interest to be awarded at any time. The fact that the substantive judgment did not explicitly reserve interest is not determinative. The judgment did not deal with the issue of interest. It is open to the Court to award interest by way of a supplemental judgment.

[8]As highlighted by Osborne J in Davern:1

Section 25(4) of the Act… expressly provides that the Court may make or accept an amendment (that meets the Act’s procedural requirements) at any time. That contemplates the possibility of a very late amendment, including after the trial of the proceeding. That is directly in line with the amendment provisions found in r 1.9(1) and r 1.9(2) of the Rules… The breadth of the power accommodates the fact that issues in relation to an interest claim are most likely to arise (with costs) consequentially upon a substantive judgment.

[9]Osborne J concluded:2

The Court, faced with the strict operation of the provisions of s 25(1) will normally, when amendment would validate an interest claim the plaintiff is pursuing, see fit, either at the request of the plaintiff or of its own motion, to grant the plaintiff time to bring an application for leave to amend under s 25(4). Or, in an unusual case, the Court may itself amend the pleading pursuant to the Court's power under r 1.9(2) High Court Rules to make amendments on its own initiative — such is likely to be appropriate only when the defendant was on clear notice and did not wish to be heard.

[10]   In Edubase Ltd v Minister of Education,3the Court of Appeal amended the pleading on its own motion to cure the failure to comply with the Act.

[11]   Generally, an application for a late amendment to pleadings must surmount “there formidable hurdles”.4 The applicant must show that the amendment is in the interest of justice, is not significantly prejudicial to the other party, and will not cause significant delay.

[12]   A similar amendment  to  that  sought  by  the  plaintiffs  was  allowed  by  the Court of Appeal in Chen v Huang, where the successful plaintiffs had mistakenly

1      Davern v QBE Insurance (Australia) Ltd [2023] NZHC 3543 at [16].

2 At [29]. The Court of Appeal in Chen v Huang [2024] NZCA 38 approved the approach in Davern: at [244].

3      Edubase Ltd v Minister of Education [2024] NZCA 430 at [106].

4      Elders Pastoral Limited v Marr (1987) 2 PRNZ 383 (CA) at [385].

referred to s 10 of the Act and not s 24, and had not specified the period for which interest was claimed. The Court stated:5

It is clear that the omission to properly plead interest in accordance with the relevant statutory provisions was a straightforward error. Both Mr Chen in his pleading, and Mr Huang and Ms Lu in their pleading, claimed interest, albeit not in compliance with the Interest on Money Claims Act. There is no prejudice to either party. Delay is not in issue. In our clear view, the interests of justice require that the amendments should be allowed.

[13]   The defendants will not be significantly prejudiced by the amendment. The defendants were on notice that the plaintiffs claimed interest — it was claimed in the fourth amended statement of claim. The amended claim for interest does not require new evidence. The issues of the appropriate period and amount or rate can be determined on the existing evidence. The defendants are also now provided the opportunity to make submissions on the amended claim to interest.

[14]For completeness, delay is not an issue engaged in the present circumstances.

[15]   For these reasons, the plaintiffs have leave to amend the prayer for relief in the fourth amended statement of claim to read as follows:

Interest under s 24(2)(b) of the Interest on Money Claims Act 2016 at the statutory rate for the period from 9 June 2021 until the date of payment, or such other rate as determined by the Court.

[16]   The defendants are to file any submissions on this amended claim for interest by  15  August  2025.    The  plaintiffs  may  file  any  submissions  in  reply  by     22 August 2025.

[17]   I note that the defendants claimed pre-judgment interest from 19 April 2019 at the contractual rate of 14 per cent per annum under s 22 of the Act. Again, the substantive judgment did not address this claim. Counsel for the defendants is invited to advise whether this issue needs to be dealt with by supplementary judgment also.

[18]Costs will be dealt with in the judgment on the issue of interest.

5      Chen v Huang [2024] NZCA 38 at [244].

Gardiner J

Solicitors/Counsel: Heritage Law, Auckland Buddle Findlay, Auckland

E St John, Barrister, Auckland S Maloney, Barrister, Auckland