Jiang's Trading Ltd v Gao

[2025] NZHC 2445

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-2170

[2025] NZHC 2445

BETWEEN

JIANG’S TRADING LTD

Applicant

AND

XIULI GAO

Respondent

Hearing:	On the papers
Appearances:	T J M Ashley and S M S Chan for the applicant
Judgment:	26 August 2025

JUDGMENT OF MACGILLIVRAY J

[Without notice originating application for interim freezing order/injunction]

This judgment was delivered by me on 26 August 2025 at 3.30pm, pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:
Forest Harrison, Auckland

JIANG’S TRADING LTD v GAO [2025] NZHC 2445 [26 August 2025]

Introduction

[1]    The plaintiff, Jiang’s Trading Ltd (JTL), seeks a freezing order to restrain  Ms Xiuli Gao from disposing, charging, or dealing with or otherwise diminishing the value of her assets, or removing her assets from New Zealand, save to the extent that the value of the assets exceeds the sum of $450,000, pending further order of the Court.

[2]    The applicant also seeks an order that Ms Gao file and serve an affidavit disclosing the existence, nature, value, and whereabouts of her assets within ten working days.

[3]    The application was referred to me as Duty Judge. For the reasons set out below, I decline the application.

Background

[4]    JTL operates the Mt Roskill Fresh Supermarket in Three Kings. Mr Gao has been employed by JTL as a cashier since April 2020. JTL alleges that over the course of her employment, Ms Gao stole $328,289.15 in cash from the business. It says that the theft first came to light on 24 July 2025 when JTL’s director, concerned at the low amount of cash in Ms Gao’s cash register, checked CCTV camera footage and observed Ms Gao taking cash from the register. JTL then completed a reconciliation of sales against cash receipted on each day Ms Gao worked to arrive at the amount claimed.

[5]    JTL’s evidence is that Ms Gao has admitted stealing cash from the business but does not accept that the amount she stole is as great as suggested by JTL.

Application without notice

[6]    I am satisfied  that the  application is properly brought without notice under   r 32.2(1). Requiring the applicant to proceed on notice in a case where it has a genuine concern about risk of disposal or dissipation of assets would cause undue delay and could prejudice the applicant.

Legal principles

[7]    To obtain a freezing order under r 32.2 of the High Court Rules 2016, the applicant must show:1

(a)that it has a good arguable case in its substantive claim;

(b)that there are assets of the respondent to which the orders can apply; and

(c)there is a real risk that the respondent will dissipate or dispose of those assets to defeat any judgment.

[8]    The Court must then weigh the interests of justice to strike a balance between protecting the applicant and avoiding undue prejudice or hardship to the respondents or any third parties.2

[9]    To establish a real risk, the applicant need not provide affirmative proof of the likelihood of dissipation, disposal, or removal. However, a mere concern, suspicion, or assertion of belief unsupported by solid grounds is not enough. The applicant needs to point to circumstances from which a prudent, sensible commercial person can infer a danger of default.3

Analysis

JTL has a good arguable case

[10]   I am satisfied that the allegations in the statement of claim are supported by sufficient evidence to make out a good arguable claim against Ms Gao. While JTL has had insufficient time to obtain a report from an independent forensic accounting expert, the methodology used by JTL to calculate the quantum of the claim against Ms

1      Bank of New Zealand v Hawkins (1989) 1 PRNZ 451 (HC) at 454, approved by the Court of Appeal in Shaw v Narain [1992] 2 NZLR 544 (CA) at 548.

2      Shaw v Narain, above n 1, at 548.

3      Raukura Moana Fisheries Ltd v The Ship Irina Zharkikh [2001] 2 NZLR 801 (HC) at [122].

Gao provides sufficient basis for a tenable claim against her for the amount claimed, bearing in mind the early stage of the proceeding.

Ms Gao has at least one asset to which an order can apply

[11]   Ms Gao is the owner of a residential property 28A Pencarrow Avenue, Epsom, with a OneRoof valuation of $2,900,000.

[12]   JTL says that a person dealing with JTL on Ms Gao’s  behalf has said that  Ms Gao has money in the form of Yuan Renminbi (RMB).

JTL has not established that there is a real risk of dissipation, disposal, or removal of assets

[13]   I conclude that JTL is unable to show a real risk of the dissipation or removal of assets. The grounds on which JTL asks the Court to infer a real risk, which are set out at [19]–[23] of the memorandum of counsel in support of the application, can be summarised as follows:

(a)RMB could be removed more quickly from New Zealand than NZD. It can also be inferred from holding foreign currency that its owner contemplates removing the funds or spending them overseas.

(b)Ms Gao is said to lead a “relatively lavish lifestyle” beyond what would be expected of a cashier with a second job in a restaurant. She has recently boasted about buying a new SUV.

(c)She has been caught stealing and, while admitting theft, has attempted to minimise her liability. Her demeanour suggests she may be attempting to “buy time” and that she may not truly intend to pay back what she has allegedly taken.

[14]   The applicant’s director says that he understands Ms Gao is a Chinese national and that he does not know how long she has been in New Zealand. He understands that she has a child of about university age but does not say whether the child is in

New Zealand or overseas. What is clear is that Ms Gao has owned a valuable residential property in New Zealand since at least 2005 (the date of issue of the Record of Title) with a mortgage from ANZ Bank New Zealand Ltd from February 2013. She appears to be a long-term resident, living and working in New Zealand. The hearsay evidence of her spending habits, which is slim, relates entirely to spending in New Zealand.

[15]   A risk of dissipation is not to be inferred merely because a foreign defendant has assets within the jurisdiction of the Court.4 In a similar vein, I reject the submission that the mere fact of holding money in a foreign currency is sufficient by itself to infer a real risk of dissipation. There is hearsay evidence that Ms Gao may engage in informal currency trading between NZD and RMB. If that is the case, then it would tend to illustrate why it would be unsafe to assume that holding RMB indicates an intent to remove currency or spend it outside New Zealand.

[16]   There is no evidence of Ms Gao leaving New Zealand or planning to do so. Nor is there evidence of her transferring or planning to transfer assets or sending or spending money overseas. The hearsay evidence of her recently buying a new car suggests the opposite. There is no evidence of her being in financial difficulty. The extremely vague hearsay evidence of her living a “relatively lavish lifestyle” provides an insufficient basis for inferring a risk of material dissipation of assets.

[17]   Counsel for JTL submits that Ms Gao’s “asset profile” is opaque but Ms Gao has not been asked to provide information as to her assets or financial information. What is clear is that she owns valuable real estate and there is no evidence that she has taken any steps to dispose of that.

[18]   That the claim against Ms Gao involves dishonesty is not a sufficient basis alone for inferring that she will seek to frustrate recovery against by disposing of assets. It is far from unusual for a defendant to seek to minimise their liability and to delay confronting a claim, particularly at a stage before lawyers have become involved or a formal claim served. The evidence before me suggests simply that Ms Gao, while

4 At [122].

admitting to taking money, does not admit the amount claimed and is likely to put JTL to proof, at least on quantum.

[19]   While JTL may be disappointed and concerned by Ms Gao’s response to date, I cannot infer from her conduct or from Mr Chang’s impression of her demeanour that there is a real risk she means to dispose of her assets or remove them from New Zealand.

Result

[20]The application is declined.

MacGillivray J