Li v Xing

[2012] NZHC 610

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-004029 [2012] NZHC 610

BETWEEN  KEXING LI Plaintiff

ANDZHIWEI XING Defendant

Hearing:         19 March 2012

Appearances: R Dellow for Plaintiff

No appearance for Defendant

Judgment:      2 April 2012

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty on

2 April 2012 at 2.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Baker Law, Private Bag 65 902, Mairangi Bay, Auckland 0754

Copy to:

D Connor/R Dellow, PO Box 3897, Shortland Street, Auckland 1140.

LI V XING HC AK CIV-2011-404-004029 [2 April 2012]

[1]      The plaintiff is a businessman in China.  The defendant is his stepson.  His stepson has been living in New Zealand since 2002.   Since 2002 there have been frequent payments of money from the plaintiff to the defendant.  This claim seeks to recover the money paid since 2007, with an allowance for a recent repayment of

$60,189.76.

[2]      The defendant’s mother says that the financial support from 2002 to 2007 was especially for educational and living expenses and was quite separate from the funds that related to the property development from April 2007 until early 2010.

[3]      The relationship between stepfather and stepson has never been good.   It particularly soured in 2010 and the plaintiff registered caveats against five properties which were being developed by the defendant in Hamilton.  Litigation ensued and in this Court Associate Judge Sargisson sustained the caveats until further order of the Court.[1]

[1] Li v Xing HC Auckland CIV-2010-404-8005, 10 June 2011.

[4]      Since that time all the caveated property has been sold by the National Bank. The plaintiff does  not  know what  were the proceeds.   These proceedings  were commenced in July 2011 to recover the advances from 2007.   The advances are mainly in Chinese currency RMB3,100,000 and then five advances in late 2009 early February 2010, totalling NZ$258,500.  As already noted, there was one payment in September, apparently following a successful sale of one of the properties in Hamilton.

[5]      The defendant has never clearly admitted that the payments were loans.  In his affidavit on 17 February, filed in the caveat proceedings, he says:

10.The funds that were sent were never considered at any point to be a loan or for the purpose of buying property here in New Zealand.  My understanding of these funds was that it was a gift from my mother in her efforts to support my welfare and future.

11.       However, as time progressed and with the continuous quarrels that my mother was having to put up with, I came to view the funds that were given to me a loan that I would pay back, just so that it world not cause my mother further heartache due to the Plaintiff’s resentments.

[6]      He goes on to dispute that all the payments came directly from the plaintiffs.

[7]      As is apparent the defendant proceeded the caveat proceedings, but has not defended these proceedings.   He was personally served with these proceedings on

11 July 2011 at 2/1 Eldon Road, Balmoral, New Zealand at about 10.59 a.m. by being handed:

(a)       Notice of proceeding dated, 7 July 2011.

(b)Notice  of  date  of  standard  track  first  telephone  conference  and statement of claim, dated 7 July 2011.

The service was effected by Mr W G West, a process server of Auckland.

[8]      It was after that service, some time after these proceedings commenced that the payment of $60,189.76 was received by the solicitor for the plaintiff, Mr Chun Zhang.

[9]      I am satisfied from perusing the schedule of payments and the affidavits, that there is no dispute and never has been, between the parties that these sums were advanced.   The only question is whether or not they can be recovered as sums advanced as a loan.  That is the contention pleaded in the statement of claim.  It has had grudging acknowledgement in the caveat proceedings as indicated above and it has not been defended in these proceedings.  On this basis I am satisfied that this is a liquidated demand and that the plaintiff is entitled to recover the sums advanced applying credit for the part repayment.

[10]     The plaintiff intends to enforce the judgment in New Zealand and wishes the judgment to be entered into in New Zealand dollars.

[11]     Chinese Renminbi is not readily traded in New Zealand.  The National Bank advise that the indicative rate at present would be 5.1 RMB to NZ$1.   This is effectively a wholesale rate which the bank advise can be used to establish approximate currency worth.  3.1 million RMB converts to NZ$607,843.10 at this

rate.  I add that sum to the New Zealand dollar advances of $258,500 to reach a total of NZ$866,343.10.

[12]     The  plaintiff  is  entitled  to  judgment  in  that  sum,  together  with  interest accruing at the adjudicature rate from the date of judgment.

[13]     Leave is reserved to the defendant to apply to the Court for a re-calculation of the conversion of RMB to New Zealand dollars.

[14]     The plaintiff is entitled to costs on a 2B basis for formal proof.