JIANPING WANG AND WEIHUA ZHANG DENNIS CLIFFORD PARSONS as Administrator of the deceased estate of JIHONG LU Continued: …/2
[2024] NZHC 2872
•3 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-2583
[2024] NZHC 2872
UNDER the Property Law Act 2007 IN THE MATTER
of an application to set aside certain dispositions of property
BETWEEN
JIANPING WANG
Plaintiff
AND
WEIHUA ZHANG
First Defendant
DENNIS CLIFFORD PARSONS as
Administrator of the deceased estate of JIHONG LU
Second Defendant
Continued: …/2
Hearing: On the papers Counsel:
R Carruthers for Plaintiff B Liu for First Defendant P Cornegé for Appointee
M Whale for B Lu – CIV-2021-404-1174
S Gray for Microsoft New Zealand Ltd – CIV-2021-404-1817Judgment:
3 October 2024
JUDGMENT OF HARVEY J
This judgment is delivered by me on 3 October 2024 at 4.30 pm pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
WANG v ZHANG [2024] NZHC 2872 [3 October 2024]
/2
CIV-2021-404-1174
UNDER the Insolvency Act 2006 IN THE MATTER of the deceased estate of
JIHONG LU
IN THE MATTER of an application by DENNIS CLIFFORD
PARSONS the appointee in the deceased estate of JIHONG LU for a search and seizure warrant under s 150 of the Insolvency Act 2006
CIV-2021-404-1817
IN THE MATTER of Section 290 of the Companies Act 1993 BETWEEN MY TEMPLAR LIMITED
Applicant
DENNIS CLIFFORD PARSONS
Insolvency Practitioner, as appointee of the deceased estate of JIHONG LU pursuant to Part 6 of the Insolvency Act 2006 Respondent
Introduction
[1] David Fisher, a senior journalist employed by the New Zealand Herald, has filed three access to documents applications concerning, inter alia, Jihong Lu’s estate. On 5 August 2024, I issued a minute requesting Mr Fisher to provide further details about his reasons for access. This followed a minute by Powell J on the same applications instructing that the registry contact interested parties for their views.
[2] Mr Fisher has now responded and the interested parties have either filed responses or declined to do so within the relevant time frame. This judgment will determine Mr Fisher’s applications.
Submissions
Mr Fisher/NZ Herald
[3] Mr Fisher’s applications to access documents on the files CIV-2021-404-1817, CIV-2021-404-1174 and CIV-2019-404-2583 were filed on 10 June 2024. Access is sought to all documents on the court files, including statements of claim and defence, interlocutory applications, affidavits, memoranda, minutes and judgments. Against each document his application lists reasons for access, being either to understand the basis of the case, monitor its progress, or accessing findings by decision makers.
[4] The grounds on which access is sought are identical. Mr Fisher contends that the NZ Herald has a genuine interest in being permitted access and to copy from those documents for its reporting. Mr Fisher says that access is appropriate for four reasons. First, the press has a responsibility to report on issues of public interest fairly and accurately. Secondly, there is a high level of public interest in the proceedings. Thirdly, the proceedings raise topical questions of legitimate public interest. Fourthly, access to the documents will enable the NZ Herald to report fairly and accurately.
[5] Mr Fisher highlighted the general principles of open justice and transparency in judicial proceedings improving public confidence in the courts. He acknowledges that this must be balanced against the privacy interests of the parties but says that his
requests seek only the information necessary to understand the proceedings, without delving overmuch into private or sensitive details.
Administrator of the estate
[6] Mr Nielsen filed a memorandum in response to the applications on 26 July 2024. He confirmed the identities of the individuals affected and underscored his opposition. Mr Nielsen noted that Mr Fisher did not provide detailed reasons for needing access to the documents and did not specify the nature of the public interest in the proceedings. He contended that there is little “genuine” public interest in the matters which relate to a personal estate in the process of distribution. Importantly, Mr Nielsen notes that further publicity is likely to have an “acute” effect on Jihong Lu’s surviving family, who are now seeking to co-operate with the administrator.
[7] Mr Nielsen notes that two of the proceedings ([1174] and [1817]) relate to applications for search and seizure warrants under the Insolvency Act 2006 and that the other includes private examinations conducted under the Insolvency Act. On this basis, should Mr Fisher be granted access, Mr Nielsen says that redactions to the documents are appropriate, as follows:
(a)the identity of specific informants;
(b)any details that might lead to their identification;
(c)transcripts of examinations conducted by the administrator; and
(d)any reference to information obtained by the administrator during those examinations.
Bin Lu
[8] On 27 August 2024, Mr Whale, counsel for Mr Bin Lu,1 confirmed that he has been unable to contact his client to receive instructions on this matter but considers that Mr Bin Lu and his family are “private people” and that Mr Bin Lu would likely
1 Bin Lu is Jihong Lu’s brother.
oppose granting access to Mr Fisher. Mr Whale relies on the memorandum by Mr Parsons in opposing the application and advises the Court to implement the redactions outlined in that memorandum if the application is granted. In line with Mr Nielsen’s comment that two of the proceedings are under the Insolvency Act, Mr Whale notes that s 169 of that Act applies.
Jianping Wang
[9] On 27 August 2024, Ms Carruthers, counsel for Mr Wang, responded to an email from the Registry seeking Mr Wang’s view on the application. Counsel’s email attached a letter from Mr Wang in which he expressed in strong terms his opposition to the release of court documents relating to the proceedings. Mr Wang considers there is no public interest in the proceeding, as it relates “purely to a commercial dispute.” Further, Mr Wang notes that matters have not been finalised and that any further publicity may jeopardise his ability to recover the remaining funds involved.
Mr Fisher’s additional submissions
[10] In his response to my minute of 5 August, Mr Fisher provided more information about the purpose of his applications. Mr Fisher says that this matter is not merely personal to the parties on the basis that “Mr Lu’s life was one lived publicly with investments in high profile endeavours leading to a high level of public interest” in the administration of his estate and surrounding circumstances. He notes that in 2022, access was granted with respect to proceeding CIV-2021-419-253, where another of Mr Lu’s companies, MY Templar Ltd, applied to set aside a statutory demand. MY Templar Ltd was put into liquidation in June 2022. Mr Fisher notes that the NZ Herald reported on the case following its access to the documents.
[11] Mr Fisher provides other articles in the public record reporting on Mr Lu’s business dealings, which he says collapsed with significant creditor debts, including to Inland Revenue Department. Mr Fisher says that as Mr Lu’s business dealings attracted public attention, including his activities in the Auckland theatre and entertainment space and his bid to redevelop Britomart in the late 1990s, it is reasonable that the administration of his estate would be of public interest.
[12] Mr Fisher says that Mr Nielsen’s concern about the effect of further publication on Mr Lu’s surviving family is “entirely speculative” and suggests that declining his applications will not necessarily prevent further reporting, absent non-publication orders. In addition, he says that the administrator has not identified why the information in the documents is confidential or sensitive.
Legal principles
[13] The Senior Courts (Access to Court Documents) Rules 2017 apply. Rule 11 provides that any person may request access to other court documents and sets out the process for doing so. The process includes the Registrar giving a copy of the request to the parties to the proceeding, who are then entitled to give written notice of any objection to the request.
[14] In determining a request for access under r 11, the Judge must consider the nature of, and the reasons given for, the request and take account of the matters set out in r 12, relevantly:
(a)the orderly and fair administration of justice:
…
(b)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:
(c)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:
(d)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):
(e)the freedom to seek, receive, and impart information:
…
(f)any other matter that the Judge thinks appropriate.
[15]Rule 13 outlines the approach to balancing the relevant considerations in r 12:
13 Approach to balancing matters considered
In applying rule 12, the Judge must have regard to the following:
(a) before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited:
(b) during the substantive hearing, open justice has—
(i) greater weight than at other stages of the proceeding; and
(ii) greater weight in relation to documents relied on in the hearing than other documents:
(c) after the substantive hearing,—
(i) open justice has greater weight in relation to documents that have been relied on in a determination than other documents; but
(ii) the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.
[16] Rule 12(d) is most relevant to this application. In ALT New Zealand Ltd v Attorney-General, Churchman J outlined the Court’s approach to open justice considerations as follows:2
[12] The principle of open justice is fundamental to our system of justice.3 However, there is no presumption in favour of disclosure.4 A balancing exercise has to be carried out, weighing the privacy interests concerned against the public interest in open justice.5 The Court must balance all relevant factors, using its discretion and evaluation to determine the appropriate weight given to each factor.6
[13] The principle of open justice is always relevant, but this must be balanced against the other considerations set out in r 12. Furthermore, r 13 provides that after the substantive hearing, open justice has greater weight in relation to documents that have been relied on in the determination of the proceedings, but the protection of privacy and confidential interests are to be given greater weight than would be the case during the hearing.
Discussion
[17] Having assessed Mr Fisher’s applications and the involved parties’ responses, I consider that partial access should be granted. As Mr Fisher submits, there is already reporting in the public record regarding Jihong Lu’s business interests and estate. I agree therefore that there is some legitimate public interest in the proceedings.
2 ALT New Zealand Ltd v Attorney-General [2023] NZHC 2883.
3 Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30 at [33].
4 At [32]; and see New Zealand Animal Law Association v Attorney-General [2021] NZHC 1275 at [7].
5 X v Standards Committee (No 1) of the New Zealand Law Society [2011] NZCA 676; and Y v Attorney-General [2016] NZCA 474, [2016] NZAR 1512.
6 Schenker AG v Commerce Commission [2013] NZCA 114, (2013) 22 PRNZ 286, relied on in
Crimson Consulting Ltd v Berry, above n 3, at [32].
Proceeding [1817]
[18] Regarding the Insolvency Act proceedings ([1817] and [1174]), I agree with the administrator that redactions are appropriate. The administration of Jihong Lu’s estate has not been finalised and Mr Nielsen has suggested that publicity of private details at this stage may further complicate the administrator’s efforts. In contemplation of this difficulty, s 169 of the Act provides that leave must be granted to publish a report of examinations conducted by the administrator or of any matter arising from an examination. Here, the administrator requests that leave be declined regarding the matters in [7] above. I consider these to be reasonable redactions which apply generally to the documents to which Mr Fisher is granted access. For the sake of caution, I note that this applies even where specific redactions have been ordered.
[19] In short, Mr Fisher has a general right to access decisions of the Court — being minutes and judgments. For [1817], Gordon J issued judgment on 13 October 2021.7 Having read through the file, I consider that access to this judgment is sufficient to meet Mr Fisher’s purposes. The key information regarding the proceeding is contained therein, and the warrant granted by Gordon J is attached to the judgment. Access to any of the other documents sought on the [1817] application is declined.
Proceeding [1174]
[20] Judgment in this case has not been issued yet. As is not unusual, the without notice application was granted by a brief minute of the Court. In such circumstances, I consider that Mr Fisher’s purposes will be met by granting access to:
(a)Application for leave to commence proceedings without notice and for search and seizure warrant dated 1 July 2021. Redaction of [2.14] of that document is required, where the address is identified.8
(b)Memorandum in support of without notice leave to commence proceeding by the Official Assignee dated 1 July 2021. Redactions are required at [6(j)(iii);
7 Re Estate of Jihong Lu [2021] NZHC 2740.
8 See ASB Bank Ltd v Versalko (2010) 20 PRNZ 634 (HC) at [31].
(k)]; [18(e),(i),(j) and (k)]; [19]; [20] and [24] of that document, which are details about the administrator’s investigations.
(c)Lang J’s minute dated 7 July 2021.
(d)Warrant for the search and seizure of property of the insolvent deceased estate under s 150 of the Insolvency Act 2006.
[21] Access to these documents will meet Mr Fisher’s purposes of monitoring the case and understanding its context and reasons. Access to supporting affidavits and submissions is not necessary. Those documents contain personal data such as bank accounts, email addresses, and details of the administrator’s inquiries which are properly kept between the parties. Access to them is therefore declined.
[22] Mr Fisher sought access to an application on this file by a non-party seeking access to the record. That application and accompanying memoranda are irrelevant to Mr Fisher’s interest in this case and contain private information about a non-party. Access is accordingly declined. However, as noted, Mr Fisher is entitled to access the minutes of the file which briefly address that application and its resolution by consent. Mr Fisher is granted access to the minutes of Whata J dated 6 and 12 August 2021.
Proceeding [2583]
[23] As with the previous applications, Mr Fisher has made a broad application seeking access to all documents on the court file. His reasons are again limited to monitoring the case, understanding its context and, with respect to amended pleadings and defences, to track changes. I note that this proceeding was between Mr Jihong Lu’s mother and a creditor of Mr Jihong Lu. The documents contain sensitive information regarding parties other than Mr Jihong Lu, who is the focus of Mr Fisher’s interest.
[24] As before, Mr Fisher is entitled to access the formal court record. There are minutes in addition to the substantive judgment and a judgment on costs, which together adequately meet Mr Fisher’s purposes. While the [2583] proceeding has concluded, the material in the file, in particular the affidavits of the parties, concerns
private information and overlaps with the ongoing administration of the Jihong Lu estate. It is in the interests of the fair administration of justice for those documents to remain confidential at this stage. Access to these affidavits and supporting documents is declined.
Decision
[25]Mr Fisher’s applications are granted in part, as set out in this judgment.
Harvey J
Solicitors/Counsel: Parry Field Lawyers Ben Liu & Co Nielsen Law
TWA Legal Chapman Tripp
P Cornegé, Hamilton
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