Hu v Yu - [2022] NZCA 142

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA546/2021
[2022] NZCA 142

BETWEEN	WEI HU Appellant
AND	CHUNGLIN YU Respondent

Counsel:	Appellant in person
Judgment: (On the papers)	27 April 2022 at 10.00 am

JUDGMENT OF GODDARD J

A A freezing order is granted restraining the respondent, Ms Chunglin Yu, from disposing of or otherwise dealing with the property at 8 Annalong Road, Dannemora, Auckland described in identifier NA97A/706 in the North Auckland Land Registration District until further order of this Court.
BDr Hu is directed to serve copies of his interlocutory application, his supporting affidavit, and all the other documents he has filed to date in this appeal on Ms Yu by sending them to the email address referred to in his affidavit dated 7 December 2021. Copies must also be sent to Ms Yu’s former solicitors, Righteous Law. This judgment must also be sent by Dr Hu to that email address, and to Ms Yu’s former solicitors.
C Direction that if Ms Yu files an appearance in this appeal, and notifies the Court that she objects to the freezing order continuing in effect, the application for a freezing order must be re-argued on a with notice basis.
DThere is no order for costs

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REASONS

Background

The appellant, Dr Hu, and another claimant, Ms Zhang, brought proceedings against the respondent, Ms Yu, for deceit in connection with an investment in a foreign currency dealer operated by Ms Yu in New Zealand.
Ms Yu resides in China. The proceedings were served on her in that country. One of the reasons that Dr Hu and Ms Zhang pursued their claim against Ms Yu in New Zealand is that she owns a property in this country at 8 Annalong Road, Dannemora, Auckland (the Auckland property). A judgment obtained in New Zealand would be able to be enforced against the Auckland property. On 13 December 2017 a freezing order was granted by Lang J against Ms Yu in respect of that property, to prevent its disposal pending determination of the claim.[1]
[1]Zhang v Yu [2017] NZHC 3107.
In August 2018 van Bohemen J entered judgment by default in favour of Dr Hu and Ms Zhang (the default judgment).[2]
[2]Zhang v Yu [2018] NZHC 2215 [Default judgment].
Ms Yu subsequently applied to the High Court to recall the default judgment. She claimed, among other things, that Ms Zhang and Dr Hu misled the Court about key facts. Ms Yu also filed a protest as to jurisdiction, claiming that China was the appropriate forum in which the claim should be brought because that is where she resides and that is where the agreement to invest was executed.
In January 2019 van Bohemen J issued a judgment in which he recalled the default judgment and set it aside (the first recall judgment). He upheld Ms Yu’s protest to jurisdiction. He dismissed the proceedings and set aside the freezing order over the Auckland property.[3] Dr Hu and…

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 Hu v Yu

Details

AGLC: Hu v Yu [2022] NZCA 142
Case: [2022] NZCA 142
Decision Date: 27 April 2022 at 10.00 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Hu v Yu involves a dispute over an investment in a foreign currency dealer operated by the respondent, Ms Chunglin Yu, who resides in China. The appellant, Dr Wei Hua, and another claimant, Ms Zhang, initiated proceedings against Ms Yu for deceit in connection with the investment. They sought a freezing order against a property owned by Ms Yu in Auckland, New Zealand, to prevent its disposal during the proceedings. The case has a complex procedural history, with multiple judgments and appeals regarding jurisdiction and the enforcement of the freezing order.

The legal issues before the Court of Appeal centred on whether the freezing order should be reinstated to protect Dr Hu's interests pending the appeal, and whether Dr Hu's appeal had sufficient arguability to warrant interim relief. The Court also considered whether Ms Yu should be given an opportunity to be heard in relation to the freezing order if she opposed it.

The Court of Appeal, Goddard JA, granted the freezing order on the basis that it was necessary to preserve Dr Hu's position pending determination of his appeal. The Court found that the appeal was reasonably arguable, particularly concerning the High Court's assumption that China was an available forum for the proceedings. The Court also noted that there was no evidence before the High Court confirming that Ms Yu would be able to appear in proceedings in China while she was detained in prison. The Court directed Dr Hu to serve copies of his interlocutory application and supporting affidavit on Ms Yu, and also to send them to her former solicitors. If Ms Yu filed an appearance in the appeal and objected to the freezing order, the application would need to be re-argued on a with notice basis.

No order for costs was made.

Orders