Li v Green Land Investment Limited
[2023] NZHC 2098
•8 August 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2021-404-1511
[2023] NZHC 2098
BETWEEN JICAL LI and FAN YU
First Plaintiffs
Continued…
AND
GREEN LAND INVESTMENT LIMITED
First DefendantContinued…
Hearing: 7 August 2023 Appearances:
R Parmenter for the first to seventeenth and nineteenth plaintiffs K Morrison and J Yao for the eighteenth plaintiffs
Third defendant in person
Judgment:
8 August 2023
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 8 August 2023 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
LI AND OTHERS v GREEN LAND INVESTMENT LIMITED AND OTHERS [2023] NZHC 2098 [8 August 2023]
YUN ZHENG
Second Plaintiff
WEN CHEN
Third Plaintiff
ZHONG WEI ZHOU
Fourth Plaintiff
BO LIN
Fifth Plaintiff
JIYUAN WU
Sixth Plaintiff
FANG YU
Seventh Plaintiff
WMW TRUSTEE LIMITED
Eighth Plaintiff
YANGZUAN WANG and MENGQUI WANG
Ninth Plaintiffs
XIN ZHAO
Tenth Plaintiff
ZELIX TRADING LIMITED
Eleventh Plaintiff
QIN ZIN ZENG and AIXUAN GUO
Twelfth Plaintiff
JCM NZ LIMITED
Thirteenth Plaintiff
YIKAI CHEN
Fourteenth Plaintiff
CHEN FINGLIANG and DING MING
Fifteenth Plaintiff
ZHIREN ZHANG
Sixteenth Plaintiff
LOVE HOMES LIMITED
Seventeenth Plaintiff
ER XIA CAO and ER SHENG CAO (AS TRUSTEES OF THE ZION TRUST) and ER SHENG CAO and ER XIA CAO (AS TRUSTEES OF CAO TRUST)
Eighteenth Plaintiffs
JASVINDER SINGH and TINA SINGH
Nineteenth Plaintiffs
AND Defendants Continued….
REGISTRAR-GENERAL OF LAND
Second Defendant
ZHONG XING
Third Defendant
LEQUN ZHAO
Fourth Defendant
XING ENTERPRISES LIMITED
Fifth Defendant
TRINITY HOPE INVESTMENT LIMITED
Sixth Defendant
FLATBUSH LAND LIMITED
Seventh Defendant
HIU CHING CHAN
Eighth Defendant
[1] This judgment determines five applications made by the third defendant, Mr Xing:
(a)An application for an order that the lawyers for the first to seventeenth and nineteenth plaintiffs cease representing those plaintiffs.
(b)An application for an order that the lawyers for the eighteenth plaintiffs cease representing those plaintiffs.
(c)An application for an order staying the judgment of Venning J dated 9 December 2022.
(d)An application for leave to appeal my judgment dated 23 March 2023.
(e)An application for an order staying enforcement of the judgment of Jagose J dated 7 June 2023.
Background
[2] This proceeding relates to a residential subdivision by the first defendant, Green Land Investment Ltd (Green Land) of property in Ormiston Rd, East Tamaki, Auckland. The first to seventeenth and nineteenth plaintiffs claim that, pursuant to agreements for sale and purchase with Green Land, they each have an interest as either purchasers or as nominees of purchasers in specified lots in the subdivision. Because the first to seventeenth and nineteenth plaintiffs claim their interests under agreements for sale and purchase, I will refer to them as the purchaser plaintiffs. The eighteenth plaintiffs also claim that they have an interest in lots in the subdivision. However, they claim their interest pursuant to an agreement under which they transferred a property to Green Land in exchange for Green Land promising to transfer three specified lots in the subdivision to them (landswap agreement).
[3] Broadly speaking, all the plaintiffs allege that Green Land schemed to avoid settlement under any of the agreements, first by capitulating to caveats lodged over the subdivided titles by a third party, and secondly by arranging contrived mortgagee
sales of the land to Mr Xing and the fourth and fifth defendants, and through them to the sixth and eighth defendants.
[4] When commencing this proceeding in July 2021, the plaintiffs obtained an interim injunction. The interim injunction prevented the Registrar-General of Land from registering a transfer of a mortgage over the claimed lots from the ANZ Bank to Mr Xing and any transfers connected to that mortgage.
[5] On 27 January 2022, Mr Xing applied for an order requiring the plaintiffs to provide security to support the undertakings as to damages they had given in support of their application for the interim injunction. On 9 March 2022, Duffy J delivered a results judgment declining Mr Xing’s application.
[6] On 15 February 2022, Davison J varied the interim injunction to allow registration of the transfer of the mortgage from the ANZ Bank to Mr Xing and to exclude some lots from the injunction.
[7] There was a substantive trial in March 2022 before Jagose J. His Honour delivered a judgment on liability on 4 August 2022. His Honour held that the purported mortgagee sales of the lots were void and that Green Land remained liable on its agreements with the plaintiffs.1 Jagose J said he was inclined to order specific performance but reserved the question of relief.2 Meanwhile, his Honour continued the interim injunction.3
[8] Mr Xing appealed Jagose J’s liability decision to the Court of Appeal. The purchaser plaintiffs cross appealed. I say more about that appeal below.
[9] On 19 August 2022, Jagose J extended the scope of the interim injunction. His Honour did so on a without notice application by the plaintiffs. In a minute explaining his decision, his Honour said the merits of the plaintiffs’ case were “very clear”.4
1 Li v Green Land Investment Ltd [2022] NZHC 1906 at [61].
2 At [67] and [71].
3 At [74].
4 Li v Green Land Investment Ltd HC Auckland CIV-2021-404-1511, 23 August 2022 (Minute of Jagose J) at [9].
[10] On 30 August 2022, Mr Xing applied to vary the interim injunction, seeking orders that he be free to exercise any power of sale under the mortgage that had been transferred from the ANZ Bank or under any mortgage in favour of Mr Xing in respect of the subdivided lots. Venning J dismissed that application in a judgment dated 9 December 2022.5 Mr Xing applied to set aside the judgment. Venning J dismissed that application in a minute dated 26 January 2023. Mr Xing then applied for leave to appeal the judgment. Venning J dismissed that application in a judgment dated 22 February 2023.6 Meanwhile, on 19 February 2023, Mr Xing had applied to stay Venning J’s 9 December 2022 judgment. That is one of the applications now before me. (Mr Xing has since appealed Venning J’s 9 December 2022 judgment to the Court of Appeal. The appeal has yet to be determined.)
[11] Meanwhile, on 16 November 2022, Mr Xing applied for an order requiring “all plaintiffs to provide security of injunction of say 5 million”. I heard that application on 21 March 2023. I treated it as an application for an order that the plaintiffs provide security to support their undertakings as to damages that they had given when applying for the interim injunction. I dismissed Mr Xing’s application in a judgment dated 23 March 2023.7 Among other things, I observed that Mr Xing’s application was well out of time (and he had not sought any extension of time), that Mr Xing had previously made the same interlocutory application and it had been dismissed by Duffy J on 9 March 2022 (and Mr Xing had not applied for leave to bring a second application), that there were no exceptional circumstances that would justify ordering the plaintiffs to provide security to support their undertakings, and that in bringing the application Mr Xing had acted improperly and/or unnecessarily (with the consequence that the eighteenth plaintiffs were entitled to indemnity costs). Mr Xing has applied for leave to appeal my judgment. That is one of the applications that is now before me.
[12] On 1 May 2023, there was a hearing before Jagose J to determine remedies following his Honour’s judgment on liability. On 7 June 2023, Jagose J gave judgment
5 Li v Green Land Investment Ltd [2022] NZHC 3321.
6 Li v Green Land Investment Ltd [2023] NZHC 261.
7 Li v Green Land Investment Ltd [2023] NZHC 595.
as to the specific orders to be made (remedies judgment).8 Among other things, Jagose J said:
[7] Mr Xing proposed I cancel all the plaintiffs’ agreements with Green Land and validate his transactions with the sixth to eighth defendants. So far as Mr Xing is concerned, the orders he seeks are contrary to my liability judgment and I will not make them. ….
[13] As noted earlier, Mr Xing appealed Jagose J’s liability judgment to the Court of Appeal. He did so on 1 September 2022. In that appeal, Mr Xing:
(a)Applied for orders to disqualify the lawyers acting for the respondents (the plaintiffs in this proceeding). The Court of Appeal dismissed that application on 18 July 2023.9
(b)Applied for an order that the requirement to pay security for costs on the appeal be dispensed with. That application was declined by a Deputy Registrar of the Court of Appeal on 29 November 2022. Mr Xing applied for a review of the decision. His review was declined by Gilbert J on 14 February 2023. Mr Xing then applied to the Supreme Court for leave to appeal from Gilbert J’s judgment. The Supreme Court declined that application in a judgment dated 19 June 2023.10
[14] Mr Xing appealed Jagose J’s remedies judgment on 9 June 2023. Mr Xing’s appeals against Jagose J’s two judgments have yet to be heard.
Procedural matters
[15] On 10 July 2023, Davison J made timetable directions in respect of Mr Xing’s five applications. Those directions were made following submission of a joint memorandum from all those interested in the applications: Mr Xing, the purchaser plaintiffs, and the eighteenth plaintiffs. Among other things, Davison J directed that:
(a)Mr Xing file submissions eight working days before the hearing.
8 Li v Green Land Investment Ltd [2023] NZHC 1399.
9 Zhong v Li [2023] NZCA 300.
10 Xing v Li [2023] NZSC 68.
(b)The plaintiffs file submissions five working days before the hearing.
[16] By the time of those directions, Mr Xing had already filed written submissions in support of his applications to disqualify the lawyers acting for the purchasing plaintiffs and for the eighteenth plaintiffs. Mr Xing did not, however, file submissions on his three other applications eight working days before the hearing.
[17] The plaintiffs duly filed their submissions (as well as comprehensive bundles) in respect of the applications within the time directed by Davison J.
[18] On the morning of the hearing, Mr Xing filed further submissions.11 These addressed his applications to disqualify the plaintiffs’ lawyers and to stay the remedies judgment of Jagose J. Mr Xing did not file any submissions in support of his applications for an order staying Venning J’s judgment dated 9 December 2022 and for leave to appeal my judgment dated 23 March 2023. However, his submissions filed on the morning of the hearing concluded by saying “the other matters can be redrawn”.
[19] At the start of the hearing, I addressed Mr Xing (through Mr Chang, who was interpreting).12 I asked him to explain why he had not filed any submissions in support of his applications for an order staying the judgment of Venning J and for leave to appeal my judgment. Mr Xing was unable to provide any explanation. Indeed, he seemed largely unaware of those applications (even though he had made them). In due course, he confirmed that his statement in his submissions that “the other matters can be redrawn” was intended to convey that those two applications could be withdrawn. Accordingly, only costs remained in issue on those two applications. I will therefore deal with those applications first.
Costs on Mr Xing’s application for an order staying the judgment of Venning J
[20] The purchaser plaintiffs are entitled to costs on this application, Mr Xing having withdrawn it. On behalf of those plaintiffs, Mr Parmenter claimed costs on a 2B basis plus disbursements. I am satisfied with Mr Parmenter’s calculations.
11 The submissions were dated 4 August 2023 but were not filed until the morning of 7 August 2023.
12 Mr Xing, who represents himself, has limited English.
Accordingly, I order Mr Xing to pay costs on this application to the purchaser plaintiffs of $7,528.50 plus disbursements of $461.56.
[21] The eighteenth plaintiffs abided the court’s decision on this application and so did not seek costs on it.
Costs on Mr Xing’s application for leave to appeal my judgment
[22] The purchaser plaintiffs are entitled to costs on this application. Mr Parmenter claimed costs of $8,962.50 and disbursements of $439.50. I accept Mr Parmenter’s calculations. Accordingly, Mr Xing is to pay costs to the purchaser plaintiffs in those amounts on this application.
[23] Ms Morrison, on behalf of the eighteenth plaintiffs, sought indemnity costs on this application. She submitted the application was meritless and vexatious. I agree with that characterisation. My judgment dealt with an application for security by Mr Xing that was hopeless on several fronts. There was no appeal point that could have been of sufficient importance to warrant an appeal. The meritless and vexatious nature of Mr Xing’s application for leave to appeal my judgment was reinforced by Mr Xing’s failure to advance any submissions in support of his application. Accordingly, on this application Mr Xing is to pay costs to the eighteenth plaintiffs on an indemnity basis.
Mr Xing’s application to disqualify the purchaser plaintiffs’ lawyers
[24] Mr Xing’s application to disqualify the purchaser plaintiffs’ lawyers and his written submissions in support were almost unintelligible. As far as I could discern, Mr Xing was submitting that the purchaser plaintiffs’ lawyers should be disqualified from acting further because:
(a)Those lawyers had taken certain steps, on the instructions of the purchaser plaintiffs, to advance the interests of the purchaser plaintiffs in this proceeding.
(b)Mr Xing had brought a separate proceeding naming both the purchaser plaintiffs and their lawyers as defendants.
[25] At the hearing, Mr Xing was unable to assist me in understanding the grounds of his application. I asked him whether he wished to make any oral submissions in addition to his written submissions. He said he did not wish to do so.
[26] Mr Xing offered no justification for disqualifying the purchaser plaintiffs’ lawyers. His application is without merit. Further, I have no doubt he advanced it to try to cause cost and delay to the purchaser plaintiffs. I decline the application.
[27] Mr Xing is to pay costs on this application. Mr Parmenter submitted that indemnity costs would be appropriate, but he preferred simply to seek costs on a 2B basis. I was satisfied with Mr Parmenter’s calculations. I order Mr Xing to pay costs on this application to the purchaser plaintiffs of $7,887 plus disbursements of $693.55.
[28] For completeness, I was satisfied it was appropriate for Mr Parmenter to appear and to have filed submissions on this application notwithstanding that the application sought to disqualify him from acting. This was because I saw no basis, from the written material filed by Mr Xing, for disqualifying Mr Parmenter (or the other lawyers acting for the purchaser plaintiffs).
Mr Xing’s application to disqualify the eighteenth plaintiffs’ lawyers
[29] Everything that I have said about the previous application applies with equal force to this one. Mr Xing’s application and written submissions were unintelligible. He declined to make any oral submissions on the application. He did not provide any basis upon which the eighteenth plaintiffs’ lawyers should be disqualified.
[30] Mr Xing’s application is without merit. I am satisfied he advanced it to try to cause cost and delay to the eighteenth plaintiffs. I decline the application.
[31] Ms Morrison sought indemnity costs. Mr Xing did not wish to be heard on costs. I am satisfied that his application was meritless, vexatious and improper.
Indemnity costs are appropriate. I order Mr Xing to pay indemnity costs on this application to the eighteenth plaintiffs.
Mr Xing’s application for an order staying enforcement of Jagose J’s remedies judgment
[32] In the remedies judgment, Jagose J essentially gave effect to the inclination that he had expressed in his liability judgment, which was to order Green Land’s specific performance of its agreements with the plaintiffs.
[33] Mr Xing seeks a stay of enforcement of the remedies judgment. The grounds set out in his application are that he has appealed the liability judgment and there will be a substantial miscarriage of justice if a stay of enforcement is not granted.
[34] As noted earlier, Mr Xing did not file any submissions in support of this application until the morning of the hearing. His written submissions did not align with his application. In respect of the purchaser plaintiffs, he submitted they should pay the purchase price due under their agreements with Green Land to a third-party stakeholder’s trust account, at which point he (Mr Xing) would pay security for costs on his two extant appeals and would seek hearings for those appeals. In respect of the eighteenth plaintiffs, he submitted that there should be a stay of execution after the eighteenth plaintiffs “resolve the caveat matter with 3rd party purchaser who lodged caveat on the 3 titles”. Although there was no evidence of this before me, I assume that further caveats have been lodged against the titles claimed by the eighteenth plaintiffs.
[35] Mr Xing elaborated on this application with brief oral submissions. He said the purchaser plaintiffs should prove they are genuinely able to complete their purchases by paying the purchase price to a third-party stakeholder.
[36] For the purchaser plaintiffs, Mr Parmenter does not oppose a stay of execution, so long as it is on conditions relating to Mr Xing’s two appeals. Mr Parmenter observed that it has been almost a year since Mr Xing appealed the liability judgment, and he had yet to pay security for costs or apply for a fixture. Mr Xing was also yet to pay security or apply for a fixture on his appeal against the remedies judgment
(which was filed on 12 June 2023). Mr Parmenter proposed that any stay be conditional on, in respect of both appeals, Mr Xing paying security for costs and applying for a fixture by 28 August 2023.
[37] For the eighteenth plaintiffs, Ms Morrison opposed any stay. She noted that the eighteenth plaintiffs were in a different position to the purchaser plaintiffs, in that they had already executed their side of the bargain under the landswap agreement. All that was left to do was for Green Land to transfer the three lots. She submitted that Mr Xing’s appeal against the liability judgment lacked merit, and that his application for a stay was the latest in a succession of meritless applications designed to frustrate the eighteenth plaintiffs’ entitlement to the three lots.
Decision
[38] I begin with the position of the eighteenth plaintiffs. A stay of enforcement may be granted if a substantial miscarriage of justice would be likely to result if the judgment were enforced.13 The Court has to recognise and reconcile the conflicting interests of both parties in such a manner as will best serve the overall interests of justice.14
[39] It is not easy to assess the merit of Mr Xing’s appeal against the liability judgment. Mr Xing’s submissions did not assist me in that regard. However, Mr Xing’s failure to advance the appeal, and the meritless applications he has made in respect of it, raise considerable doubt that it has any strength.
[40] Mr Xing is seeking to stay the transfer of three lots to the eighteenth plaintiffs. Mr Xing is, at best on his case, merely the mortgagee of those lots. His interest in the lots is solely economic.
[41] It is clear that Mr Xing has a penchant for bringing meritless applications in this proceeding. He appears intent on frustrating the eighteenth plaintiffs’ claimed entitlements to the lots, regardless of the underlying merits.
13 High Court Rules 2016, r 17.29.
14 Enright v Gold Metal Exports Ltd (1989) 3 PRNZ 243.
[42] All these factors weigh against granting a stay. I therefore decline to stay execution of the remedies judgment in respect of the eighteenth plaintiffs’ entitlements under the judgment. Further, Mr Xing is to pay costs to the eighteenth plaintiffs. Ms Morrison did not seek indemnity costs on this application. Costs are to be assessed on a 2B basis.
[43] As for the purchaser plaintiffs, I agree with Mr Parmenter that the quid pro quo for a stay of execution is that Mr Xing should progress his two appeals without further delay. To date, Mr Xing appears to have used those appeals as delaying measures.
Result
[44] On the application for an order staying the judgment of Venning J, which was withdrawn by Mr Xing at the hearing, I order Mr Xing to pay costs to the purchaser plaintiffs of $7,528.50 plus disbursements of $461.56.
[45] On the application for leave to appeal my judgment, which was withdrawn by Mr Xing at the hearing, I order Mr Xing to pay costs to the purchaser plaintiffs of $8,962.50 plus disbursements of $439.50 and to pay costs to the eighteenth plaintiffs on an indemnity basis.
[46] I decline Mr Xing’s application to disqualify the purchaser plaintiffs’ lawyers. I order Mr Xing to pay costs on this application to the purchaser plaintiffs of $7,887 plus disbursements of $693.55.
[47] I decline Mr Xing’s application to disqualify the eighteenth plaintiffs’ lawyers. I order Mr Xing to pay costs on this application to the eighteenth plaintiffs on an indemnity basis.
[48] I decline Mr Xing’s application for an order staying enforcement of Jagose J’s remedies judgment in respect of the eighteenth plaintiffs’ entitlements under that judgment. I order Mr Xing to pay costs on this application to the eighteenth plaintiffs on a 2B basis.
[49] In respect of the purchaser plaintiffs, I order that enforcement of Jagose J’s remedies judgment be stayed, conditional on Mr Xing paying security for costs and applying for a fixture in respect of both his appeals by 28 August 2023.
Campbell J
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