IBuy Property Limited v He - [2023] NZHC 1757

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-181

[2023] NZHC 1757

BETWEEN
IBUY PROPERTY LIMITED

Plaintiff

AND

XIAOMING HE

Defendant

Hearing: 30 June 2023

Appearances:

A N Riches for Plaintiff

No appearance for or on behalf of the Defendant S D McIntyre for Chunyue Ye

Judgment:

6 July 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 6 July 2023 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

IBUY PROPERTY LTD v HE [2023] NZHC 1757 [6 July 2023]

[1] IBuy Property Ltd (IBuy) has applied for summary judgment against Xiaoming He (Mr He) seeking possession of a property at 377 Selwyn Street, Christchurch. Mr He has taken no steps to defend the claim other than in respect to costs.

[2] Chunyue Ye is seeking an order pursuant to r 4.56 of the High Court Rules 2016 joining her as a defendant to this proceeding. She claims to have a lease of the Selwyn Street property. She says she ought to have been joined as a defendant and that her presence is necessary to adjudicate all questions arising in the proceeding.

[3]IBuy opposes Ms Ye’s application.

Background

[4] Mr He was the registered owner of the Selwyn Street property. Following the Christchurch earthquakes, Mr He brought proceedings against the Earthquake Commission (EQC) and others in the High Court. He was largely unsuccessful in the High Court.1 He appealed to the Court of Appeal, and his appeal was dismissed.2 He sought leave to appeal to the Supreme Court, and leave was refused.3 Mr He was left with large judgment debts in respect to costs and interest of those proceedings.

[5] Ms Ye is Mr He’s former wife. She says that in February 2020 she took a long lease of the Selwyn Street property from Mr He to ensure payment of sums she had lent to him to pursue his earthquake claim against EQC. She also says that she sublets the property to Mr He, from which he operates a dairy business (in respect of which she also claims an interest), and to a carwash business.

[6] The terms of the lease are most unusual, but I do not have to set them out in this judgment for the purposes of this application. Ms Ye has not produced any subleases.

[7] Mr He’s judgment creditors enforced payment of what they were owed by way of a sale order under pt 17 of the High Court Rules. Pursuant to the sale order, on

1      He v Earthquake Commission [2017] NZHC 2136.
2      He v Earthquake Commission [2019] NZCA 373.
3      He v Earthquake Commission [2019] NZSC 149.

21 December 2022, the Selwyn Street property was sold to IBuy by public auction under the instructions of the Sheriff at Christchurch.

[8] The Selwyn Street property was marketed for sale by Grenadier Real Estate Ltd (Harcourts). Mr He advised Harcourts that…

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.

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Details

Case: [2023] NZHC 1757
Decision Date: 6 July 2023

CaseChat Overview and Summary

IBuy Property Limited has applied for summary judgment against Xiaoming He to seek possession of a property at 377 Selwyn Street, Christchurch. Chunyue Ye, who claims to have a lease of the property, has applied to be joined as a defendant in the proceeding. The hearing took place on 30 June 2023, and judgment was delivered on 6 July 2023. The central legal issues were whether the court had jurisdiction to join Ms Ye as a defendant under r 4.56 of the High Court Rules 2016 and whether the court should exercise its discretion to do so. The court found that it had jurisdiction to join Ms Ye under both limbs of r 4.56(1)(b), as her presence was necessary to adjudicate on all questions involved in the proceeding. The court also exercised its discretion to join Ms Ye, considering it was in the interests of justice to resolve all issues in one proceeding. The court ordered Ms Ye to be joined as a second defendant and directed the parties to file amended pleadings and synopses of argument, with a view to hearing the summary judgment application on 31 August 2023. Costs were reserved.

The court's reasoning hinged on the necessity of resolving all disputes relating to the same subject matter without delay and expense of separate proceedings. The court considered that Ms Ye's interests would be directly affected by the outcome of the proceeding, and it would be unjust to adjudicate on the matter without her being heard. The court also noted that while IBuy opposed the application, the interests of all parties would be served by joining Ms Ye as a defendant. The court directed the Registrar to convene a telephone conference to make timetable directions and suggested the parties aim for a hearing date of 31 August 2023.

Orders