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Mao v Buddle Findlay

Mao v Buddle Findlay

Case [2022] NZHC 2885 4 November 2022

Civil Litigation & Procedure

Commercial Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001054

[2022] NZHC 2885

BETWEEN
LIANSEN MAO

First Plaintiff

AND

QIUFEN LU

Second Plaintiff

AND

BUDDLE FINDLAY

First Defendant

AND

INDUSTRIAL AND COMMERCIAL BANK OF CHINA (NEW ZEALAND) LIMITED

Second Defendant

AND

QIAN HOU

Third Defendant

AND

CHARLY JIANG

Fourth Defendant

Hearing: 18 August 2022

Appearances:

No appearance for the First and Second Plaintiffs

Laura O’Gorman KC and Andrijana Milosavljevic for the First to Third Defendants
No appearance for the Fourth Defendant
Katherine Anderson as Counsel Assisting the Court

Judgment:

4 November 2022

JUDGMENT OF MOORE J

This judgment was delivered me on 4 November 2022 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar / Deputy Registrar Date:

MAO &ANOR v BUDDLE FINDLAY & ORS [2022] NZHC 2885 [4 November 2022]

Background

[1] The plaintiffs, Liansen Mao and Qiufen Lu are husband and wife. Ms Lu borrowed money from the Industrial and Commercial Bank of China (New Zealand) Ltd (“the Bank”), the second defendant. They have not repaid it. The Bank has taken steps in New Zealand and China to recover the amount owed. Buddle Findlay, the first defendant, has been acting for the Bank in New Zealand. The third defendant is Ms Hou. She is a director and Chief Executive Officer of the Bank. The fourth defendant is a former employee of the Bank.

[2] In these proceedings Mr Mao and Ms Lu’s substantive claims relate to the conduct of the Bank and Buddle Findlay. The statement of claim is very difficult to follow. However, the various allegations include that they were induced to enter the loan agreement on the basis of a misrepresentation, that the Bank failed to obtain the best price at the mortgagee sale, and that in commencing legal proceedings in China and obtaining freezing orders there, there was a repudiation of the loan agreement. They also claim that Buddle Findlay breached its fiduciary duty in relation to the Bank’s mortgage sale process and committed blackmail.

[3] These proceedings are the eighth claim one or both of the plaintiffs have filed against the Bank and/or Ms Hou in connection with the Bank’s attempts to recover the sums owed to it by Ms Lu.

[4] On 17 August 2021, the first to third defendants applied for strike out orders and/or summary judgment of the plaintiffs’ claims as well as seeking an order under s
166 of the Senior Courts Act 2016 (“the Act”) to restrain the plaintiffs from commencing and continuing certain proceedings (the “Prevention Order”). The plaintiffs opposed all applications and filed written submissions in opposition.

[5] On 22 March 2022, Associate Judge Andrew heard the strike out and summary judgment applications. He determined that the plaintiffs’ claims were incapable of

success and granted the defendants summary judgment.1 He also granted the defendants’ strike out application.2

[6] However, as for the application for the Prevention Order, the Judge considered that Associate Judges do…

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 [2022] NZHC 2885
Case: [2022] NZHC 2885
Decision Date: 4 November 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Mao and Others v Buddle Findlay and Others [2022] NZHC 2885 involved a dispute between the plaintiffs, Liansen Mao and Qiufen Lu, and the defendants, Buddle Findlay, Industrial and Commercial Bank of China (New Zealand) Ltd, and others. The plaintiffs' claims against the defendants, primarily the Bank and its legal representatives, Buddle Findlay, were related to the loan agreement and the subsequent attempts by the Bank to recover the outstanding debt. The plaintiffs alleged misrepresentation, failure to obtain the best price at the mortgagee sale, and repudiation of the loan agreement, among other things. These proceedings were the eighth instance where the plaintiffs had attempted to litigate the same or similar issues against the Bank and its associated entities.

The legal issues in this case primarily revolved around whether the plaintiffs' claims were an abuse of process, and if so, whether the court should grant a Prevention Order to restrain the plaintiffs from initiating further proceedings against the defendants. The defendants applied for strike out orders, summary judgment, and a Prevention Order, while the plaintiffs opposed these applications and filed further applications to set aside or stay the judgment.

Moore J dismissed the plaintiffs' applications to set aside or stay the judgment, finding them to be fundamentally misconceived. The court noted that the plaintiffs' claims were devoid of merit and constituted an egregious abuse of process. The court held that the plaintiffs had not appealed the Associate Judge's decision, and no factors supported the plaintiffs' applications. The court emphasised that the defendants were entitled to finality and that the balance of convenience favoured the defendants. Furthermore, the court found that there was no miscarriage of justice as the plaintiffs' causes of action were wholly devoid of merit.

Moore J also considered the defendants' application for a Prevention Order. The court found that the application could be made by way of interlocutory application as the related litigation was on foot. The court then examined whether the application for a Prevention Order should be granted. The court noted the history of meritless and abusive litigation by the plaintiffs and found that the threshold for making an extended order under Section 166 of the Senior Courts Act 2016 was easily met. The court granted the application for a Prevention Order, restraining the plaintiffs from commencing or continuing proceedings against the defendants for a period of three years. The court emphasised that the order was necessary to prevent frivolous and vexatious litigation, while also protecting the plaintiffs' genuine rights to commence bona fide proceedings.

In conclusion, the court dismissed the plaintiffs' applications to set aside or stay the judgment and granted the defendants' application for a Prevention Order. The plaintiffs were restrained from commencing or continuing proceedings against the defendants for a period of three years. The defendants, as the successful parties, were entitled to costs, and the court encouraged the parties to resolve any costs issues between themselves.

Orders