Li v Green Land Investment Ltd
[2023] NZHC 1399
•7 June 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 1399
BETWEEN JICAI LI and FANG YU
First plaintiffs
Continued…
AND
GREEN LAND INVESTMENT LIMITED
First defendant
Continued…
Hearing: 1 May 2023 Appearances:
R O Parmenter for first to seventeenth and nineteenth plaintiffs K H Morrison and T Y Yao for eighteenth plaintiffs
Third defendant in person (remotely)
M E Casey KC and A J Casey for eighth defendantDate of judgment:
7 June 2023
JUDGMENT OF JAGOSE J
[Remedy]
This judgment was delivered by me on 7 June 2023 at 11.00am.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
M E Casey KC, Auckland
R O Parmenter, Barrister, Auckland Carson Fox Bradley Ltd, Auckland
Copy to:
Third defendant
LI v GREEN LAND INVESTMENT LTD [2023] NZHC 1399 [7 June 2023]
Plaintiffs continued…
YUN SHENG
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
YANGXUAN WANG and MENGQUI WANG
Ninth plaintiffs
XIN ZHAO
Tenth plaintiff
ZELIX TRADING LIMITED
Eleventh plaintiff
QIN XIN ZENG and AIXUAN GUO
Twelfth plaintiffs
JCM NZ LIMITED
Thirteenth plaintiff
YIKAI CHEN
Fourteenth plaintiff
CHEN FENGLIANG and DING MING MING
Fifteenth plaintiffs
ZHIREN ZHANG
Sixteenth plaintiff
LOVE HOMES LIMITED
Seventeenth plaintiff
ER XIA CAO and ER SHENG CAO (as
trustees of ZION TRUST) and ER SHENG CAO and ER XIA CAO (as
trustees of CAO TRUST) together with JUN WUEighteenth plaintiffs
JASVINDER SINGH and TINA SINGH
Nineteenth plaintiffs
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] My 4 August 2022 liability judgment determined “Green Land remains liable on its agreements with the plaintiffs”, but some plaintiffs were liable for trespass damages to Green Land in agreed amounts.1
1 Li v Green Land Investment Ltd [2022] NZHC 1906 at [61] and [65].
[2] My inclination was to order Green Land’s specific performance of the plaintiffs’ agreements, and the trespassing plaintiffs pay the agreed damages to Green Land.2 But, for the reasons set out in my liability judgment,3 I reserved determination of the plaintiffs’ remedy for further submission if not otherwise agreed.
[3]This is my judgment on remedy.
Background
[4] Further agreement has not been possible. So far as the plaintiffs are concerned, orders are proposed for all plaintiffs but the 18th,4 whose ‘land swap’ position is distinct from the others’ direct acquisition of their properties,5 and separate orders proposed for the 18th plaintiffs.6 Those proposed orders essentially are to give effect to my inclination. After declarations affirming my liability judgment’s findings, the proposed orders would regularise the land register, and obtain specific performance by and trespass damages for Green Land. Costs also are sought, in amount clarified by Mr Parmenter’s 24 April 2023 reply memorandum.
[5] Argument was heard on 1 May 2023. Unhelpfully, the primary target of those orders, Green Land, took no part in the remedies hearing but Mr Parmenter earlier had advised its (now-former) counsel authorised him to say Green Land would abide my decision on remedy. My 1 May 2023 minute explained I had rejected Green Land’s contention it represented itself,7 and corrected the principals of its former solicitor’s firm, Chen Sandhu Lawyers, remained on the record.
[6] Remotely participating in the 1 May 2023 hearing was the unrepresented Mr Xing,8 whose unfounded intercession to alienate some of the properties at issue
2 At [67].
3 At [66] and [70].
4 For all but the 18th plaintiffs, as annexed to Mr Parmenter’s 29 August 2022 memorandum.
5 Li v Green Land Investment Ltd, above n 1, at [8]–[9].
6 For the 18th plaintiffs, filed as “(2nd draft) Amended proposed orders)” for the 1 May 2023 hearing.
7 Re G J Mannix Ltd [1984] 1 NZLR 309 (CA) at 311. See also Jayashree Ltd v Moore [2022] NZCA 151 at [5], citing Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [25]–[34] and Dreamtech Designs & Productions Pty Ltd v Clownfish Entertainment Ltd [2015] NZCA 491, (2015) 23 PRNZ 141 at [8]–[10].
8 My serial minutes of 28 April 2023 first denied, then conditionally granted, Mr Xing’s requests for remote participation. I was satisfied by his response to my questions at the outset of the 1 May 2023 hearing his remote participation could continue on the basis I conditionally had allowed it.
gave rise to much of the complication in determination of remedy.9 Caught in the middle as a result are the sixth to eighth defendants as purchasers from Xing Enterprises,10 of whom only the eighth defendant (Ms Chan) took an active role at trial.
Discussion
[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. Except by necessary corollary, he offers no substantive opposition to the orders sought by the plaintiffs. As I indicated in my liability judgment, it would be manifestly unjust for Xing Enterprises to remain registered owner of the titles at issue.11
[8] Ms Chan helpfully agrees the proposed orders rejecting the dealings giving rise to her interest may be made. She also proposes “a charging order in her favour over the settlement funds up to the amount of her entitlement”. I am not prepared to make such an order now, when it is not founded in any application for trial.
[9] Ms Chan’s contended entitlement to some portion of the balance of settlement funds — as well as those potentially of the sixth and seventh defendants, and of Green Land, Mr Zhao and Mr Xing’s interests — remain a source of anxiety in my ordering relief. I therefore am drawn to Mr Parmenter’s suggestion the net settlement funds be paid to a neutral solicitor stakeholder as being “just to allow [interested parties] a chance to lay claim to the moneys and avoid [expatriation] risk”.
[10] Finally there is the question of costs. Mr Parmenter has presented a calculation for all but the 18th plaintiffs to which there appears no opposition; unless I have overlooked it, no costs appear yet to have been claimed by the 18th plaintiffs. Ms Chan resists any liability to the plaintiffs for costs, on the basis of an offer she had made to
9 Li v Green Land Investment Ltd, above n 1, at [27]–[32] and [68]–[69].
10 At [2] and [24].
11 At [66].
the fourth and tenth plaintiffs.12 But Ms Chan’s position cannot, and did not, survive the invalidity of ‘her’ property’s prior transfer to Xing Enterprises.13 Her offer would be to endorse the transfer, which cannot be countenanced.
Result
[11] Although draft orders are proposed for all but — and separately for — the 18th plaintiffs,14 the two sets of draft orders appear consistent with my liability judgment and not substantially inconsistent with each other.15 I will make orders accordingly.
Next steps
[12]However, there are some minor disparities in the two sets of draft orders:
(a)Mr Parmenter’s draft appears to omit my dismissal of Green Land’s first counterclaim, which is included in the draft proposed for the 18th plaintiffs;
(b)counsel also differ in their expression of common relief, for example, in reference to what is to be declared “unlawful, invalid and ineffective” (at Mr Parmenter’s para 2 and the 18th plaintiffs’ paras 2 and perhaps 6);
(c)the 18th plaintiffs’ greater articulation of specific performance’s mechanics at their draft’s paras 3–5 may be preferable to the shorter form essayed for the other plaintiffs at their para 6; and
(d)it may be the 18th plaintiffs see no reason for leave to seek ancillary orders to give effect to the substantive orders as the other plaintiffs seek at para 8, or the other plaintiffs see no reason for leave to seek further orders if specific performance cannot be obtained in fact as the 18th plaintiffs seek at para 7, but both seem desirable.
12 The Caseys’ 23 September 2022 memorandum misstates the offer as being to the “fourth and tenth defendants”.
13 Li v Green Land Investment Ltd, above n 1, at [59].
14 Above at nn 4 and 6.
15 My liability judgment was not explicit, but the 19th defendants were added as necessary parties to complete the chain of purchases from Green Land to the 17th defendant.
[13] I am concerned not to have two sets of orders sealing my judgment, and especially not expressed in (even minorly) different terms. I invite counsel for the plaintiffs combine to produce a single set of draft orders to the ends already presented, even if segregated for the 18th plaintiffs’ differential, including any costs sought by the 18th plaintiffs.
Directions
[14]I direct:
(a)within 20 working days of this judgment, the plaintiffs file and serve a single set of draft orders for sealing, and
(b)any response by any of the defendants and any reply be filed and served
within five working days of respective service.
In case it need to be said, the opportunity for response only is to identify any claimed difficulty in giving effect to the draft orders or error in calculating costs. The defendants may not make any alternative proposition. There will be no further hearing. I expect to direct sealing in terms thereafter.
[15]With reference to [9] above, I further direct:
(a)such solicitor file and serve a memorandum to account for their ultimate receipt of the net settlement funds within five working days of receipt of the last of those funds, and
(b)any party claiming an interest in those funds file and serve an interlocutory application accordingly within 20 working days of the solicitor’s service.
—Jagose J
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