Mao v Buddle Findlay - [2023] NZHC 3776

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001054

[2023] NZHC 3776

BETWEEN
LIANSEN MAO

First Plaintiff

AND

QUIUFEN LU

Second Plaintiff

AND

BUDDLE FINDLAY

First Defendant

AND

INDUSTRIAL AND COMMERCIAL BANK OF CHINA (NEW ZEALAND) LIMITED

Second Defendant

AND

QUIN HOU

Third Defendant

AND

CHARLY JIANG

Fourth Defendant

Hearing: (On the papers)

Counsel:

First and Second Plaintiffs in Person

Andrijana Milosavljevic for the First to Third Defendants No appearance for the Fourth Defendant

Judgment:

19 December 2023

JUDGMENT OF MOORE J

[Application for stay of proceedings]

This judgment was delivered by me on 19 December 2023 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar / Deputy Registrar Date:

MAO & ANOR v BUDDLE FINDLAY & ORS [2023] NZHC 3776 [19 December 2023]

Introduction

[1] The plaintiffs, Liansen Mao and Qiufen Lu, defaulted on a loan from the second defendant, the Industrial and Commercial Bank of China (New Zealand) Ltd (“the Bank”). The plaintiffs have together filed a total of nine proceedings against the Bank and/or related parties in connection with the Bank’s attempts to recover the sum. The eighth was filed against the Bank together with its representatives Buddle Findlay (the first defendant), the director and Chief Executive Officer (the third defendant), and a former employee (the fourth defendant).

[2] On 22 March 2022, Associate Judge Andrew (as he then was) granted the first to third defendants’ applications for strike out and summary judgment of the proceeding (“Strike Out Judgment”).1 He adjourned an application for an order under s 166 of the Senior Courts Act 2016 restraining the plaintiffs from commencing or continuing these or related proceedings (“Prevention Order”), on the basis that the jurisdiction could only be exercised by a High Court Judge.

[3] On 4 November 2022, I declined the plaintiffs’ applications to set aside and stay the Strike Out Judgment and granted the first to third defendants’ application for a Prevention Order (“Prevention Order Judgment”).2

[4] An appeal against the Prevention Order Judgment was deemed abandoned on 24 March 2023 as the plaintiffs failed to pay security for costs. The plaintiffs subsequently filed applications for an extension of time to appeal and for review of the Registrar’s decision declining to dispense with security for costs, both of which are ongoing.

[5] On 30 October 2023, I delivered a judgment as to costs on both the Strike Out Judgment and the Prevention Order Judgment.3 I ordered that the plaintiffs were to pay the first and second defendants indemnity costs on the basis that the plaintiffs acted improperly in bringing and continuing the proceeding.

1      Mao v Buddle Findlay [2022] NZHC 521 [Strike Out Judgment].
2      Mao v Buddle Findlay [2022] NZHC 2885 [Prevention Order Judgment].
3      Mao v Buddle Findlay [2023] NZHC 3036 [Costs Judgment].

[6] It was subsequently brought to my attention that the plaintiffs had, in the intervening period on 13 June 2023, filed an interlocutory application for orders staying…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mao v Buddle Findlay

Details

AGLC: Mao v Buddle Findlay [2023] NZHC 3776
Case: [2023] NZHC 3776
Decision Date: 19 December 2023

CaseChat Overview and Summary

The case of Mao v Buddle Findlay & Ors involves Liansen Mao and Qiufen Lu, who defaulted on a loan from the Industrial and Commercial Bank of China (New Zealand) Ltd. They have filed multiple proceedings against the bank and related parties, including Buddle Findlay, in an attempt to recover the sum. This application relates to a stay of the proceedings, specifically seeking a stay of the Prevention Order Judgment which restrained the plaintiffs from commencing or continuing the proceedings. The key legal issues before the court were whether the plaintiffs were required to obtain leave under Rule 7.52 of the High Court Rules 2016 to apply for a second stay, and whether the application itself was an abuse of process. The court found that Rule 7.52 did not apply as the subject of the orders was different, but noted that the plaintiffs had failed to obtain leave to continue the proceeding as required by the Prevention Order. The court further found that the application was an abuse of process and declined to grant a stay.

The interlocutory application for an order staying Mao v Buddle Findlay & Ors [2022] NZHC 2885 is declined. Leave is reserved to the defendants to seek such further orders in relation to costs.

Orders