Little Hen Ltd v GLZJ Ltd (in liquidation)
[2025] NZHC 2789
•25 September 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-000627
[2025] NZHC 2789
IN THE MATTER of Rule 32.2 of the High Court Rules 2016 BETWEEN
LITTLE HEN LTD
Plaintiff/Applicant
AND
GLZJ LTD (in liquidation)
First Defendant/First Respondent
BINBO GE
Second Defendant/Second RespondentZIOU JIANG
Third Defendant/Third RespondentLUXE CAPITAL GROUP LP
Fourth Defendant/Fourth RespondentCAN ZHANG
Fifth Defendant/Fifth Respondent
Hearing: 5 June 2025 Counsel:
A S Ahmed for Plaintiff
M J W Lenihan for Second to Fifth Defendants
Judgment:
25 September 2025
JUDGMENT OF BREWER J
This judgment was delivered by me on 25 September 2025 at 10 am pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
A S Ahmed (Auckland) for Plaintiff
Loo and Koo (Auckland) for Second to Fifth Defendants
LITTLE HEN LTD v GLZJ LTD (in liquidation) [2025] NZHC 2789 [25 September 2025]
Introduction
[1] The plaintiff (Little Hen) sold land to the first defendant (GLZJ). There was vendor finance of $2.6 million. Later, GLZJ sold the land to the fourth defendant (Luxe). GLZJ is in liquidation. The vendor finance has not been repaid. Little Hen wants its money.
[2] Little Hen’s problem is that to get its money it must establish an interest in the land. But, it has no apparent interest:
(a)the agreement for sale and purchase between Little Hen and GLZJ does not reserve an interest;
(b)the term loan agreement (TLA) between Little Hen and GLZJ for the vendor finance does not create an interest; and
(c)a General Security Agreement (GSA) from GLZJ to Little Hen applies only to GLZJ’s intangible assets.
[3] Further, there is no document from GLZJ, any of the other defendants, or any other person, acknowledging or confirming the existence of an interest in the land.
[4] The parties were advised by their own lawyers and the documents at [2] were drafted by the lawyers.
[5] Little Hen’s initial solution to its problem was to allege fraud. But, when the second to fifth defendants sought summary judgment, an amended statement of claim was filed adding a cause of action in misrepresentation. Little Hen’s position was made clear at the hearing before me by Mr Ahmed, a solicitor employed in-house by Little Hen:
JUSTICE BREWER:
So, you are saying that right at the beginning your client was induced to enter into the TLA by a misrepresentation?
MR AHMED:
Yes Your Honour.
JUSTICE BREWER:
And this is before Luxe was even in existence?
MR AHMED:
Yes Your Honour.
JUSTICE BREWER:
So, you are saying that I should take it that when GLZJ entered into the agreement for sale and purchase with Little Hen and the TLA and GSA which came out of that, you are saying that right from the get-go GLZJ intended to defraud your client by defaulting on its obligations and setting up a straw company to which it could transfer the land so as to deprive Little Hen of its vendor finance?
MR AHMED:
Yes Your Honour.
[6]In the amended statement of claim dated 13 May 2025:
(a)the first cause of action alleges that the sale of the land by GLZJ to Luxe was fraudulent because it was fabricated to avoid GLZJ having to repay the $2.6 million of vendor finance;1 and
(b)the second cause of action alleges misrepresentation by the first and second defendants that the fourth defendant was an independent party.2
[7]There is only one prayer for relief in the amended statement of claim:
a.An order pursuant to section 52(1)(a) and 54 of the Land Transfer Act 2017 declaring the property sale from the First Defendant to the Fourth Defendant as fraudulent.
b.An order pursuant to the legal principle of misrepresentation to set aside the transaction from the First Defendant to the Fourth Defendant, in relation to the sale of the property, located at 63-65 Victoria Street, Onehunga, Auckland.
c.An order requiring the First, Second, Third, Fourth and Fifth Defendant to pay $2,600,000 to the Plaintiff for the vendor financing still owed.
d.An order requiring the First, Second, Third, Fourth and Fifth Defendant to pay interest on the $2,600,000, for a period commencing on 9 September 2024, in accordance with Section 10 of the Interest on Money Claims Act 2016.
1 I will call this the Land Transfer Act 2017 (LTA) fraud ground.
2 I will call this the misrepresentation ground.
[8] The land is comprised of a number of lots on which residences have been, or are being, built and progressively sold.
[9]This Judgment determines three interlocutory applications:
(a)an application by Little Hen filed on 17 March 2025 for freezing orders restraining the defendants from disposing of, dealing with, or diminishing the value of the land;
(b)an application by Little Hen filed on 7 April 2025 for an interim injunction (and ancillary orders), on essentially the same grounds advanced for the freezing orders, requiring Luxe to keep $3 million from the sale proceeds of the lots in their solicitors’ trust account, and restraining the defendants from registering any security instrument against the land’s titles; and
(c)an application by the second to fifth defendants for summary judgment filed on 24 April 2025 and amended on 23 May 2025.
[10] If I grant the application for summary judgment then Little Hen’s applications will be moot. I will, therefore, decide first whether there should be summary judgment.
The summary judgment application
Grounds of application
[11] In their amended application for summary judgment, dated 23 May 2025, the second to fifth defendants advance the following grounds:
(a)the plaintiff has no right to claim Land Transfer Act 2017 (LTA) fraud; and
(b)the plaintiff has no standing to claim relief for misrepresentation under the LTA as there is no legal basis on which to claim relief against the defendants.
Legal principles on summary judgment
[12] Rule 12.2(2) of the High Court Rules 2016 (the Rules) provides that the Court may give judgment against a plaintiff if the defendant satisfies the Court that none of the causes of action in the plaintiff’s statement of claim can succeed.
[13] The Court of Appeal in Westpac Banking Corp v MM Kembla New Zealand Ltd3 set out the principles applicable to a defendant’s summary judgment application.
These were summarised in a later Court of Appeal judgment; Stephens v Barron:4
(a)The defendant has the onus of proving on the balance of probabilities that the plaintiff cannot succeed. Usually this will arise where the defendant can offer evidence which is a complete defence to the plaintiff’s claim.
(b)An application for summary judgment will be inappropriate where there are disputed issues of material fact or where material facts need to be ascertained by the Court and cannot confidently be concluded from affidavits. It may also be inappropriate where ultimate determination turns on a judgment able to be properly arrived at only after a full hearing of the evidence.
(c)The Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment is not to be arrived at on a fine balance of the available evidence as would be appropriate at a trial.
(d)The residual discretion of the Court to refuse summary judgment would be properly invoked to avoid the oppression which would otherwise result if an application by a defendant for summary judgment would pre-empt a plaintiff exercising the right to amend the pleadings.
(e)Summary judgment should not be applied for unless the substantive merits of the case are clear and capable of summary disposal.
[14] In Bernard v Space 2000 Ltd, Thomas J explained the threshold for summary judgment with reference to the predecessor to r 12:5
[21] Rule 136(2), as indicated in Kembla (at 313), is only appropriate where the defendant has a “clear answer to the plaintiff which cannot be contradicted”. Summary judgment for a defendant “will arise where the defendant can offer evidence which is a complete defence to the plaintiff's claim”. (Emphasis added). The requirement that there be a clear answer which
3 Westpac Banking Corp v MM Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA) at [61]–[68].
4 Stephens v Barron [2014] NZCA 82 at [9] (footnotes omitted). Also see Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307.
5 Bernard v Space 2000 Ltd (2001) 15 PRNZ 338 (CA).
cannot be contradicted and a complete defence before judgment is entered for a defendant under r 136(2) is not to be disregarded. … Thus, the subrule contemplates an answer which is clear-cut; what in colloquial language would be described by counsel as a “king hit”.
Submissions of the second to fifth defendants on LTA fraud
[15] The defendants submit that Little Hen has no right to bring a claim of LTA fraud as Little Hen has neither a registered nor unregistered interest in the land and had no such interest at the time of the sale of the land from GLZJ to Luxe. Mr Lenihan submits that this lack of standing is a complete defence for the second to fifth defendants. Before progressing to the substance of the defendants’ submissions on this point, it is useful for context to set out the law applicable to a claim of LTA fraud.
[16] In their original and amended statements of claim, Little Hen relies on ss 52(1)(a) and 55 of the LTA. Section 52 provides:
52 Exceptions and limitations
(1)The title of the registered owner to an estate or interest in land is subject to the following exceptions and limitations:
(a)in a case where the title of the estate or interest of the registered owner is acquired through fraud on the part of the registered owner or the registered owner’s agent …
[17]Section 55 (which is not particularly relevant) provides:
55 Court may make order only in cases of manifest injustice
(1)The court may make an order cancelling the registration of person B only if it is satisfied that it would be manifestly unjust for person B to remain the registered owner of the estate or interest.
(2)For the purpose of subsection (1), the existence of forgery or other dishonest conduct does not, of itself, constitute manifest injustice.
(3)An order under this section may be made only if the court is satisfied that in the circumstances the injustice could not properly be addressed by compensation or damages, whether under subpart 3 or otherwise.
…
[18]“Fraud” in a LTA context is defined in s 6 of that Act:
6 Meaning of fraud
(1)For the purpose of this Act, other than subpart 3 of Part 2, fraud means forgery or other dishonest conduct by the registered owner or the registered owner’s agent in acquiring a registered estate or interest in land.
(2)For the purposes of subsection (1), the fraud must be against—
(a)the registered owner of an estate or interest in land; or
(b)the owner of an unregistered interest, if the registered owner or registered owner’s agent,—
(i)in acquiring the estate or interest had actual knowledge of, or was wilfully blind to, the existence of the unregistered interest; and
(ii)intended at the time of registration of the estate or interest that the registration would defeat the unregistered interest.
[19] Mr Lenihan submits that s 6 precludes the plaintiff from bringing a claim of LTA fraud. He notes that, for a claim to succeed, Little Hen would have to show that it was the owner of a registered or unregistered interest in the properties. However, the claim for fraud is set out in the following terms:
4.1The sale from the First Defendant to the Fourth Defendant was fraudulent.
4.2The sale was fabricated to avoid the obligations of the vendor finance of $2,600,000 to the Plaintiff [the TLA].
[20] As Mr Lenihan notes, the TLA was never secured over the properties, or at all. As such, the TLA creates no interest in the properties for the purpose of the LTA. At the time of the sale from GLZJ to Luxe, Little Hen had no registered interest in the properties.
[21] Consequently, the second to fifth defendants submit that Little Hen has no standing to bring a claim of LTA fraud as it has no interest, registered or unregistered, in the properties.
Submissions of Little Hen on LTA fraud
[22] In opposing the application for summary judgment, Mr Ahmed says Mr Lenihan did not address s 6(2)(b) of the LTA in his submissions and it is this subsection—that relating to an unregistered interest in land—on which he relies in advancing the claim in LTA fraud. Relying on Efstratiou v Glantschnig,6 Mr Ahmed submits Little Hen has been defrauded of its unregistered/registered interest in the properties. Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd, cited in Efstratiou v Glantschnig provides:7
The true test of fraud is not whether the purchaser actually knew for a certainty of the existence of the adverse right, but whether he knew enough to make it his duty as an honest man to hold his hand, and either to make further inquiries before purchasing, or to abstain from the purchase, or to purchase subject to the claimant’s rights rather than in defiance of them. If, knowing as much as this, he proceeds without further inquiry or delay to purchase an unencumbered title with intent to disregard the claimant’s rights, if they exist, he is guilty of that wilful blindness or voluntary ignorance which, according to the authorities, is equivalent to actual knowledge, and therefore amounts to fraud.
[23] Mr Ahmed submits that Luxe, headed by Ms Jiang and Ms Zhang, knew enough to “make it both their duty as honest people ‘to stay their hand’.” He says they have “proceeded without further inquiry or delay to purchase an unencumbered title with intent to disregard [Little Hen’s] rights, in the form of unregistered interest (vendor finance and GSA).” It is this wilful blindness, he submits, that amounts to LTA fraud. Mr Ahmed also submits that Mr Ge, along with Ms Jiang and Ms Zhang, “conspired to defraud [Little Hen] of its equitable estate or interest in the property.”
[24] Addressing Mr Lenihan’s submissions, Mr Ahmed says the defendants overlooked the possibility for fraud to arise in relation to an unregistered interest in land and he says that “The undisputable fact that [Little Hen] loaned $2,600,000 created an unregistered interest in the properties.” The loan is, according to Mr Ahmed, the basis for Little Hen’s unregistered interest.
[25]I interpret Mr Ahmed’s submissions at the hearing as follows:
6 Efstratiou v Glantschnig [1972] NZLR 594 (CA).
7 Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1923] NZLR 1137 (CA) at 1175.
(a)GLZJ knew it had granted an unregistered interest in the land to Little Hen through the GSA;
(b)since GLZJ could only have knowledge through human form, the controllers of the company must also have had actual knowledge of that interest;
(c)the purchaser, Luxe, could also only have had knowledge through its human controllers. This knowledge, Mr Ahmed says, transferred with Ms Jiang when she became involved with Luxe; and
(d)accordingly, Mr Ahmed says that, largely through Ms Jiang, both Luxe and GLZJ knew of the interest created by the GSA and proceeded in spite of it.
Discussion on LTA fraud
[26] The insurmountable problem for Little Hen is that it has no registered interest in the land and has provided no evidence of an unregistered interest in the land. The only evidence is that there was vendor finance. Normally, of course, vendor finance on the sale of real estate is secured in some form, commonly by a registered mortgage. That is commercially sensible. But, that was not done here. There is no mention of security in the TLA and the GSA does not provide security through the creation of an interest in the land.
[27] A GSA may, “as a matter of contract”, create a security over land.8 Given there is no mention of the relevant land in the GSA, and only intangibles are referred to as collateral in that agreement, the GSA does not create an interest in the land. Registration of the GSA on the Personal Property Securities Register (PPSR) does not alter that position. The Personal Property Securities Act 1999, which provides for the PPSR, does not apply to an interest “created or provided for by … the creation or transfer of an interest in land”.9 As such, neither the GSA itself, nor the registration thereof on the PPSR, created an interest in the land for Little Hen.
8 Glover No 2 Ltd v Bank of New Zealand [2016] NZCA 182 at [36].
9 Personal Property Securities Act 1999, s 23(e)(i). Also see above n 8.
[28] The affidavits on behalf of Little Hen on the existence of an interest in the land are as follows:
(a)in his affidavit of 4 March 2025, Mr Liu appears to assert that Little Hen has some unregistered interest in the property, by asserting that “Ge, Jiang, Zhang and their associated companies/limited partnership defrauded [Little Hen] and [Mr Liu] of the funds [they] have invested into the property”;
(b)in his affidavit of 21 March 2025, Mr Liu stated that Little Hen had filed proceedings to seek the Court’s assistance in “invalidating the fraudulent sale between GLZJ Limited and the Luxe Capital LP, with the intention to defraud [Little Hen’s] interest of $2,600,000 on the property”; and
(c)in his affidavit of 12 May 2025, Mr Liu stated that “A General Security Agreement (“GSA”) was granted and registered by [Little Hen] for past and future properties of [GLZJ].”
[29] These assertions are inconsistent with the documents the parties caused their lawyers to create at the relevant times. Oral assertions cannot, in any event, create an interest in land.10
[30] Little Hen’s first cause of action, the LTA fraud ground, cannot succeed. I will grant the defendants’ application for summary judgment in respect of it.
10 Section 24 of the Property Law Act 2007 provides that a contract for disposition of land is not enforceable by action unless the contract is in writing or its terms are recorded in writing. Similarly, s 25 provides that the disposition of an existing interest in land (legal or equitable) must be in writing. In limited circumstances, an oral agreement may give rise to an equitable interest in land where there is sufficient evidence of agreement and part performance. See for example: Guppy v Wohler [2023] NZHC 3716 at [20] and [39], citing Neil Campbell Campbell on Caveats (3rd ed, Lexis Nexis, Wellington, 209) at [10.009]; and DW McMorland and others Hinde McMorland & Sim Land Law in New Zealand (online ed, Lexis Nexis) at [4.22] and [10.009].
The misrepresentation ground
[31] This ground was added to the amended statement of claim after the filing of the application for summary judgment. It is poorly pleaded:
5.1The First and Second Defendant misrepresented to the Plaintiff that the Fourth Defendant was an independent party.
5.2The Plaintiff had no knowledge of the fact that the Third Defendant was a partner of the Fourth Defendant.
5.3The First and Second Defendant misrepresented to the Plaintiff that the sale from the First Defendant to the Fourth Defendant was an “arm-length” transaction, not an independent parties transaction.
[32] As Mr Lenihan submits, these pleadings lack particulars and are not supported by any evidence. The plaintiff has provided no evidence that any misrepresentations were made by any of Mr Ge, Ms Zhang, or Ms Jiang.11
[33] Mr Lenihan points out that the relief sought, being declaratory relief and the setting aside of the sale from GLZJ to Luxe, is unavailable under the LTA as Little Hen has no standing under that Act. In any event, relief under “the legal principle of misrepresentation” only applies to a statement made by a party to a contract prior to formation that the party says gives it a right to cancel the contract or seek other relief. Contractual misrepresentation was not pleaded and, as such, Mr Lenihan submits the pleading is untenable.
Submissions of Little Hen on misrepresentation ground
[34] Mr Ahmed’s submissions on the claim of misrepresentation are difficult to follow. However, at the hearing, he provided some clarification and I understand his submissions to be as follows.
[35] Mr Ahmed submitted that, pursuant to s 51(5) of the LTA, the indefeasibility of title provided by s 51 does not affect the in personam jurisdiction of the Court. On this basis, he submits that the indefeasibility of the title to the land does not prevent Little Hen’s personal claims against the second, third and fifth defendants. He
11 I note that the plaintiff’s affidavits were made prior to the filing of the amended statement of claim—countering the misrepresentation claim.
correctly submits, in reliance on Efstratiou v Glantschnig,12 that fraudulent conduct during the registration process can amount to an in personam claim. As I interpreted it at the hearing, the essential submission on this point is that Little Hen can raise its in personam claim against the second to fifth defendants to effectively compel Luxe to deal with the title to the land to give effect to the in personam agreement.
[36] Before proceeding to the crux of Little Hen’s submissions on this ground, it is useful to understand the context. The second and third defendants were previously in a personal relationship, and both were directors and shareholders of GLZJ. They say they separated in September 2022 (which the plaintiff disputes). Mr Ge became the sole director and shareholder in GLZJ in September 2022 when Ms Jiang resigned and transferred her holding to him. Ms Jiang paid $1.6 million to GLZJ for the deposit to be paid to Little Hen for the properties. In June 2023, Ms Jiang became a partner in the newly incorporated Luxe, with Ms Zhang. When Luxe purchased the properties from GLZJ, Ms Jiang paid the majority of the deposit and signed the loan agreement. It seems it is the apparent connection between Mr Ge and Ms Jiang, and the connection between Ms Jiang and Luxe, that Little Hen takes issue with.
[37] Mr Ahmed says Little Hen would not have consented to the sale of the properties from GLZJ to Luxe, nor would they have lifted caveats lodged over the properties, had they known of the relationships between the defendants, which were not disclosed to Little Hen. He submits that GLZJ and Mr Ge misrepresented to Little Hen that the sale from GLZJ to Luxe was an arms-length transaction. He argues that, despite Ms Jiang’s evidence to the contrary, she had remained an “integral part” of the transaction from GLZJ to Luxe, and that the transaction was essentially designed to prevent Little Hen from recovering its vendor finance from the sale to GLZJ.
[38] While not pleaded, Mr Ahmed also provided the following in his submissions in opposition to summary judgment, essentially raising a claim under the Contract and Commercial Law Act 2017 (CCLA):
60.Counsel submits that [Little Hen] is not claiming misrepresentation against the defendants, under the Land Transfer Act.
12 Efstratiou v Glantschnig, above n 6.
61.Counsel submits that the Defendants (First to Fifth) [misrepresented] that Luxe was an independent party to [Little Hen] and that the sale to Luxe was an arms-length transaction.
62.[Little Hen] was induced into an agreement to lapse the caveats in July 2023 and allowed the sale of the property to Luxe.
63.Counsel submits the legal remedy for misrepresentation will be damages to be paid to [Little Hen].
[39] It seems Little Hen is now seeking damages under the CCLA but, as mentioned, this has not been pleaded, there is no evidential basis for it and, in any event, it is not clear in respect of which contractual misrepresentation damages are being claimed.
Discussion on misrepresentation ground
[40] I must further complicate this already messy conflict by referring to the caveats mentioned by Mr Ahmed. The sale of the land by GLZJ to Luxe was due to settle on 7 July 2023. Little Hen lodged a caveat on 6 July 2023.
[41] On 12 July 2023, GLZJ made urgent application to this Court to have Little Hen’s caveat removed.13
[42] Mr Ge deposes that, also on 12 July 2023, Little Hen’s litigation lawyer, Mr Ho, sent an email to GLZJ’s solicitor, Mr Gong, attaching an agreement for sale and purchase relating to the land which was said to create Little Hen’s caveatable interest. Mr Ge says this agreement is a forgery: he had never seen it before despite his signature and initials apparently appearing on it.
[43] Mr Ge’s allegation of forgery was bolstered by the discovery that the agreement was on a form which was not created until well after its date. Following correspondence between GLZJ’s and Little Hen’s solicitors, the caveat was withdrawn on 18 July 2023 and the sale of the land to Luxe settled on 21 July 2023.14
13 GLZJ Ltd v Little Hen Ltd HC Auckland CIV-2023-404-001400.
14 There was a second caveat not in the name of Little Hen and so I will not refer to it.
[44] At the hearing before me, Mr Ahmed sought to rely on a new affidavit from Mr Qiu, dated 4 June 2025, and also to file a supplementary bundle of documents, both of which, Mr Ahmed submits, are relevant to the misrepresentation ground. Mr Lenihan objects. I will deal with this issue now before deciding the application for summary judgment in respect of this ground.
[45] The affidavit from Mr Qiu was not before the Court. In a Bench Note,15 I recorded that Mr Ahmed had explained the point of the affidavit to me so I could understand the developing issue. I noted that it was doubtful that I would be able to receive the affidavit, but would do so on a de bene esse basis and allow submissions from Mr Lenihan as to whether I should receive it.
[46] At issue is the validity of the agreement for sale and purchase, dated 10 September 2022, on the basis of which the 6 July 2023 caveat was lodged. Mr Ahmed explained at the hearing that the agreement “memorialised” what Mr Qiu and Mr Ge had agreed during a telephone call, and they had simply used a new version of the standard form to memorialise their agreement. Mr Ahmed based this explanation on an affidavit, affirmed by Mr Qiu on 4 June 2025. It was not before me at the hearing, but Mr Ahmed explained its contents. Mr Lenihan takes considerable issue with it being considered, so I pause briefly to address the parties’ views on the status of that affidavit.
[47] The affidavit provides that “sometime in September 2022, Mr Binbo Ge and [Mr Qiu made] a verbal agreement, in relation to … the properties”. Mr Qiu deposes that he and Mr Ge had agreed that, when houses were built, Mr Ge’s company would grant Little Hen the right to purchase several. After Little Hen (and the other caveator) had lodged caveats, Mr Qiu says Mr Ge asked him to help “brokerage between … GLZJ … and [Little Hen] to convince [Little Hen] to lift the caveat” so Mr Ge could sell the properties to an independent party to prevent default on a mortgage, as Mr Qiu was a personal guarantor for the mortgage and would be liable for the shortfall. Mr Qiu deposes that he “reminded” Mr Ge of their agreement to “buy Lot 15–19 of
15 Little Hen Ltd v GLZJ Ltd HC Auckland CIV-2025–404–627, 5 June 2025 (Bench Note of Brewer J).
the properties for $1,500,000 in the future”. Inconveniently, this discussion took place via a telephone call in July 2023 and Mr Qiu cannot recall the date or time of the call.
[48] Mr Lenihan filed submissions on 10 June 2025, vehemently opposing the reading of Mr Qiu’s affidavit on a number of grounds, principally:
(a)on 23 April 2025, Mr Ge affirmed an affidavit, alleging that the agreement for sale and purchase was a forgery and he had never seen it before; and
(b)Mr Liu filed an affidavit in reply on 12 May 2025 and Mr Qiu filed an affidavit in reply the following day. Neither responded to Mr Ge’s assertion that the agreement for sale and purchase was forged.
[49] Mr Lenihan also takes issue with the means by which Mr Qiu’s affidavit came before the Court. I note that Mr Ge was afforded no right of reply, there was no explanation for the lateness of filing, and the defendants had no awareness of its existence until the hearing was well underway. Further, Mr Lenihan says there are significant credibility issues with the late filing and the content of the affidavit that mean it should not be read:
(a)no explanation was given for why Mr Qiu recalled such an important matter at the eleventh hour;
(b)the agreement for sale and purchase should have been addressed in the reply affidavits of Mr Qiu and Mr Liu, but it was not; and
(c)there are multiple, significant internal contradictions in the affidavit that call into question the truth of what Mr Qiu has deposed.
[50] Mr Ahmed also filed a supplementary bundle of documents on 3 June 2025, including a valuation report for the properties, an agreement for sale and purchase between GLZJ Ltd and Hax Building Group Ltd, a Barfoot & Thompson Auckland Residential Property Sales Report from June 2023, and a Construction Contract between GLZJ and QNZ Ltd. I indicated at the hearing that Mr Lenihan would be
given the opportunity to express his view on the admissibility of these documents. He has done so and objects to the admission of the aforementioned four documents on the basis that none of the documents have been put into evidence by the maker of an affidavit and are hearsay as to their content. Mr Lenihan also objects to the admission of a further reply affidavit of Mr Liu, dated 29 May 2025, as it is simply a reply to a reply.
Admissibility
[51] The affidavit of Mr Qiu is very late. It was sought to be introduced at the hearing and Mr Lenihan was essentially blindsided. I accept the tenor of Mr Lenihan’s criticisms of the affidavit. The veracity of the statements made is highly questionable and not of a probative value which should cause me to put aside the structure of the Rules for the orderly, and fair, conduct of civil proceedings. I decline to admit Mr Qiu’s affidavit dated 4 June 2025.
[52] As to the admissibility of the four documents included in the plaintiff’s supplementary bundle of documents, dated 3 June 2025, it is reasonably clear that these are hearsay and therefore inadmissible.16
[53] I also decline to admit the affidavit of Mr Liu, dated 29 May 2025. On 12 May 2025, Mr Liu deposed an affidavit in reply to Mr Ge’s affidavit. Mr Ge deposed an affidavit in reply on 23 May 2025. As such, Mr Liu’s 29 May affidavit constitutes a reply to a reply, which is made worse by the fact that it does not even address Mr Ge’s reply affidavit.
Discussion on misrepresentation ground continued
[54]I now return to the misrepresentation ground.
[55] In my view, there is insufficient evidence of an actionable misrepresentation which should prevent me granting summary judgment to the defendants. Indeed, there is no evidence of an actionable misrepresentation at all. While there is no standalone “legal principle of misrepresentation”, as referred to by Mr Ahmed, misrepresentation
16 Evidence Act 2006, s 17.
requires there to be some false or misleading pre-contractual statement, be it explicit or implied.17 There is no need for me to go further to address the requirements for a misrepresentation to be actionable as Little Hen has not provided any evidence of a representation made by the defendants to Little Hen suggesting that GLZJ and Luxe were arms-length commercial entities. Much more is needed to claim misrepresentation than merely asserting that parties have misrepresented the reality of a commercial relationship.
[56] It is alleged that Little Hen withdrew its caveat because it was assured that GLZJ and Luxe were arms-length commercial entities, when they were not. But, there is no credible evidence that Little Hen had a caveatable interest in the land. The caveat was withdrawn following negotiations between the parties’ lawyers after forgery was alleged and not rebutted. There is no evidence of a representation disclosed, or of a relevant reason for the withdrawal of the caveat. The evidence of any representation is vague and lacking context.
[57]I am satisfied that the misrepresentation ground cannot succeed.
[58]I will grant summary judgment on this ground.
Decision
[59]The second to fifth defendants’ application for summary judgment is granted.
[60] The applications by Little Hen for freezing orders and for an interim injunction (with ancillary orders) are moot. I observe that, given my conclusions on the application for summary judgment, I would not have granted them. They are dismissed.
[61] The second to fifth defendants are entitled to costs. I will receive memoranda occupying no more than three pages each. The defendants are to file theirs no later
17 See Stephen Todd and Matthew Barber Burrows, Finn and Todd on the Law of Contract in New Zealand (7th ed, LexisNexis, Wellington, 2022) at [11.2.1].
than 8 October 2025. Little Hen’s memorandum is to be filed no later than 22 October 2025.
Brewer J
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