Lin v Mayall Property Group Limited

[2018] NZHC 3151

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2545

[2018] NZHC 3151

BETWEEN

YING-TSUNG LIN AND WEN-I LIN

First Applicants

LIANSEN MAO
Second Applicant

GREEN LAND INVESTMENT LIMITED
Third Applicant

AND

MAYALL PROPERTY GROUP LIMITED

First Respondent

Continued on next page

Hearing:	On the papers
Counsel:	D K Wilson for Applicants
Judgment:	4 December 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 4 December 2018 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Loo & Koo, Auckland

LIN v MAYALL PROPERTY GROUP LIMITED [2018] NZHC 3151 [4 December 2018]

AND  AUCKLAND COUNCIL

Second Respondent

TOM KROON and ANTJE KROON
Third Respondents

HUADA INVESTMENT LIMITED
Fourth Respondent

ESTUARY CHT LP
Fifth Respondent

TSAN FAI LO, CAN RONG LUO and WEI ZHU ZENG

Sixth Respondents

UMH GROUP LIMITED
Seventh Respondent

LIANSEN MAO
Eighth Respondent

ER XIA CAO, ER SHEN CAO and JUN WU

Ninth Respondents

MEI WO MICHAEL LAW and IN MAN MANDY LAW LEE

Tenth Respondents

LEADING DEVELOPMENTS LIMITED
Eleventh Respondent

XINHAO DEVELOPMENTS LIMITED
Twelfth Respondent

WEIHONG HE
Thirteenth Respondent

TSUNG KUANG CHUEH and HUI- HSIANG KAO

Fourteenth Respondents

DZL INVESTMENT COMPANY LIMITED

Fifteenth Respondent

CHIMBUSCO INTERNATIONAL LIMITED

Sixteenth Respondent

[1]                   I have an application before me without notice for directions as to service and for leave to proceed by way of originating application. The proceedings concern the removal of covenants. As the proceedings are relatively straightforward, I am content to grant leave to proceed by way of originating application.

[2]                   The application for directions as to service is more complicated. The applicants seek the following directions for service:

(a)On respondents one to seven, nine to thirteen, and fifteen to sixteen by personal service, and where there is more than one person comprising a respondent, an order that it is sufficient service if the proceedings are served on one of the named respondents.

(b)The fourteenth respondents, being Tsung Kuang Chueh and Hui-Hsiang Kao, are to be served by posting the application for extinguishment of covenants and the affidavit in support to Benjamin Bong, solicitor, The Wong & Bong Law Office, 17 Aviemore Drive, Highland Park, Auckland.

(c)The eighth respondent, Liansen Mao, are to be served by serving the documents on the solicitor for Liansen Mao, Daniel Zhang of Amicus Law, Level 7, 175 Queen Street, Auckland.

(d)Where there are mortgagees for a respondent, as shown in Schedule A to the affidavit in support of this application, they are to be served by posting the application for extinguishment of covenants and the affidavit in support to the mortgagee’s head office or registered office in New Zealand.

(e)The mortgagees of Liansen Mao, eighth respondent, are to be served by posting to Lucy Chu at Lucy Chu Lawyers, 310 Manukau Road, Epsom, as solicitor for the two mortgagees.

(f)Caveators on the titles of any of the respondents are to be served by posting the documents for service to the address for service shown on the caveats in question.

(g)Auckland Council as territorial authority in respect of the properties in question, is to be served by personal service of the application and affidavit in support at the principal office of Auckland Council, corner Albert Street and Wellesley Street West, Auckland, such service being pursuant to s 316(3) of the Property Law Act 2007.

(h)Dispensing with service of the proceedings on the persons listed in exhibits “A” and “B” to the affidavit of Gareth Benjamin Scourfield filed in support of this application.

[3]                   Having sought further assistance from the applicant and convened a telephone conference, I am prepared to grant modified orders as set out in Schedule A. My reasons follow.

[4]The following are categories of persons that require service:

(a)Owners of subdivided land;

(b)Multiple owners of land;

(c)Owners resident overseas;

(d)Owners represented by solicitors in New Zealand; and

(e)Interested third parties.

[5]                   I am satisfied (with the benefit of an affidavit by Mr Scourfield, Land Transfer Consultant) that I should adopt the observations made by Jagose J that owners of

subdivided titles are not affected by the application and service on them is not necessary.1

[6]                   I am also prepared to allow substituted service on Tsan Fai Lo and Wei Zhu Zeng, two of the sixth respondents, by the documents for the proceeding being personally served on Can Rong Luo. In this regard, I have an affidavit of Michael Steven Holt (a process server). He has previously served Mr Luo in previous proceedings (CIV-2018-404-1542). Mr Luo indicated to him that he is the son and brother of the other two respondents and both were out of New Zealand.

[7]                   I am also satisfied that service on Jun Wu, one of the ninth respondents, can be effected by the documents for the proceeding being personally served on Er Xia Cao. In proceedings CIV-2018-404-1542, Mr Holt was instructed to try and serve Jun Wu, together with Er Xia Cao. He served the papers on Er Xia Cao at her place of work. He asked her about the whereabouts of the other two ninth respondents. She advised that Jun Wu lives in Australia. I am comfortable that service on Er Xia Cao, in those circumstances, is sufficient for the purposes of serving Jun Wu.

[8]                   I am further satisfied that service of the fourteenth respondents, being Tsung Kuang Chueh and Hui-Hsiang Kao, can be effected by posting the application for extinguishment of covenants and the affidavit in support to their solicitor, Benjamin Bong. Mr Wilson has been in correspondence with Mr Bong and assures me that service on Mr Bong will achieve service on those named respondents. I am also satisfied that service on Mr Mao by serving the documents on his solicitor, Daniel Zhang of Amicus Law, will be effective for the same reason.

[9]                   I am satisfied that service on the mortgagees for the respondents would be effective by way of posting the application for extinguishment of covenants and the affidavit in support to the mortgagees’ head office or registered office in New Zealand and in respect of Mr Mao, the eighth respondent, by posting to Lucy Chu at Lucy Chu Lawyers. Mr Wilson advises that she  is  the solicitor  for the  two  mortgagees  of Mr Mao, as noted on recent mortgagee documentation.

1      He v Mayall Property Group Ltd HC Auckland CIV-2018-404-1542, 8 August 2018.

[10]               Finally, service on caveators at the address as shown on the caveats should also be effective. Accordingly, I make the orders for service as set out in the attached.

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TO:     The Respondents, and other persons to be served

1.The interlocutory Application Without Notice for directions as to service and leave to proceed by way of Originating Application was determined by His Honour, Justice Whata, on 30 November 2018.

2.The determination was made without a hearing.

3.The following orders were made:-

(a)      These proceedings are to be served on the following persons or’ parties in the manner described below:-

(i)By personal service on respondents one to five, seven, eight, ten to thirteen, fifteen, sixteen, Can Rong Luo (one of the sixth respondents) and Er Xia Cao and Er Sheng Cao (two of the nlnth respondents).

(ii)On Tsan Fai Lo and Wei Zhu Zeng, two of the sixth respondents, by the documents for the proceedings being personally served on Can Rong Luo. In addition, there is to be served on Can Rong Luo a copy of the sealed Order for service, notifying Can Rong Luo that service on Tsan Fai Lo and Wei Zhu Zeng is by service of the documents on Can Rong Luo.

(iii)On Jun We, one of the ninth respondents, by the documents for the proceedings being personally served on Er Xia Cao. In addition, there is to be served on Er Xia Cao a copy of the sealed

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Order for service, notifying Er Xia Cao that service on Jun Wu is by service of the documents on Er Xia Cao.

(iv)The fourteenth respondents, being Tsung Kuang Chueh and Hui-Hsiang Kao by posting the Application for extinguishinent of easements and the Affidavit in support to Benjamin Bong, Solicitor, The Wong & Bong Law Office, 17 Aviemore Drive, Highland Park, Auckland.

(v)The eighth respondent, Liansen Mao, by serving the. documents on the solicitor for Liansen Mao, Daniel Zhang of Ainicus Law, Level 7, 175 Queen Street, Auckland.

(vi)Service on respondents may also be in accordance with Rule 6.7 of the High Court Rules.

(vii)Where there are mortgagees for a respondent, as shown in Schedule A to the Affidavit in support of this Application, by posting the Application for extinguishment of easements and the Affidavit in support to the mortgagee’s head office or registered office in New Zealand.

(viii)The mortgagees of Liansen Mao, eighth respondent, by posting to Lucy Chu at Lucy Chu Lawyers, 310 Manu1‹au Rd, Epsom. As solicitor for the two mortgagees.

(ix)Caveatois on the titles of any of the respondents are to be served by posting the documents for service to the address for service shown on the caveats in question.

(x)Auckland Council as territoi’ial authority in respect of the properties in question by personal service of the Application and Affidavit in support at the principal office of Auclcland Council, Corner’ Albert Street and Wellesley Street West, Auckland, such service being pursuant to s. 316(3) of the Property Law Act 2007.

(b)      That the Originating Application for extinguishment of easements filed together with this Application may proceed by way of Originating Application.