Mao v Green Land Investment Limited
[2020] NZHC 865
•1 May 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-1241
[2020] NZHC 865
BETWEEN LIANSEN MAO
Plaintiff
AND
GREEN LAND INVESTMENT LIMITED
Defendant
Hearing: 25 October 2019 Appearances:
Jiawen Mao as Advocate for the Plaintiff (by leave at the hearing) J Strauss for the Plaintiff (post hearing)
G M Illingworth QC for Defendant
Further submissions completed:
29 January 2020
Date
of Judgment:
1 May 2020
JUDGMENT (No. 2) OF POWELL J
This judgment was delivered by me on 1 May 2020 at 3.30 pm pursuant to R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
MAO v GREEN LAND INVESTMENT LIMITED [2020] NZHC 865
[1] This judgment addresses a number of interlocutory applications arising in these proceedings.
[2] Judgment has been necessarily delayed by the lockdown imposed in response to the Coronavirus pandemic.
Background
[3] On 8 June 2018 I dismissed an application by the defendant, Green Land Investment Limited (“Green Land”) to strike out the claim of the plaintiff, Liansen Mao, and his defence to Green Land’s counter-claim, and made a number of other orders as to how these proceedings were to be case managed from that point.1
[4] Despite ongoing case management since the first judgment was issued a wide range of issues have prevented the proceedings from being set down for hearing.
[5] Pre-imminent among those issues has been continued difficulties with completing discovery. Discovery by Mr Mao was incomplete at the time of the first judgment, and the scope of discovery has since been expanded following the filing of amended pleadings by both parties in early 2019.
[6] Initial issues with the adequacy of discovery provided by Green Land following the first judgment were resolved by consent in November 2018, and by February 2019 it appeared that the completion of inspection was all that was required. However, following the issue of a number of mortgages and other encumbrances over Mr Mao’s property at 387 Ormiston Road in early 2019, in April 2019 leave was required to be given to enable Green Land to incorporate further amendments into its pleadings, and an application for particular discovery was made by Green Land in respect of both Mr Mao and New Zealand Customs Service (“Green Land application for particular discovery”), which related to the encumbrances on the property.
[7] By early May 2019 the application for particular discovery against Mr Mao had been identified as a real issue with the result that this application was set down for
1 Mao v Green Land Investment Ltd [2018] NZHC 1348 at [38], (“the first judgment”).
hearing, the first of the applications considered in this judgment. Mr Mao subsequently raised an issue as to who was entitled to inspect documents previously discovered by Green Land under conditions of confidentiality, with a formal application subsequently made by Mr Mao to vary those confidentiality restrictions (“Mao application to vary confidentiality restrictions”), the second of the applications now before the Court. In the meantime, Mr Mao was directed to file a supplementary affidavit of documents “on the undisputed aspects of [Green Land’s] application for particular discovery”.
[8] The supplementary list was not filed as directed, and it was only after I had issued an unless order on 21 June 2019 that it was belatedly filed by Mr Mao. Almost immediately Green Land raised issues with the adequacy of this supplementary list and I directed further submissions on this issue. This led to the filing of a further application by Green Land to strike out Mr Mao’s claim against Green Land. The application to strike out was not limited to the issues around the application for particular discovery and the filing of the supplementary list issue, but purported to rely on all historical non-compliance by Mr Mao with regard to his discovery obligations (“Green Land application to strike out”). Within the same application Green Land also sought an order that Mr Mao’s solicitors, Amicus Law, not be permitted to continue to represent Mr Mao (“Green Land application to remove Amicus Law”).
[9] The three applications were accordingly set down for hearing before me on 21 October 2019 and I indicated that further directions would be issued as to whether Amicus Law could continue to act for Mr Mao on the applications. In the meantime, on 6 September 2019 Mr Mao, through his daughter, Jiawen Mao (who holds a power of attorney on behalf of Mr Mao), advised that “Amicus Law would no longer be acting and [Mr Mao] would be self-represented”.
[10] Somewhat surprisingly, the duration of Mr Mao’s self-representation was linked to Green Land complying with an application for particular discovery filed by Mr Mao the same day as he gave notice that Amicus Law was no longer acting (“Mao application for particular discovery”). In the affidavit of Ms Mao filed in support of the Mao application for particular discovery Ms Mao also referred to a further application, an application to “set aside the Green Land application to strike
out”, with the relief sought by Mr Mao the dismissal of Green Land’s counterclaim, although this appears to be a reference to a notice of opposition filed by Ms Mao in respect of the Green Land application to strike out.
[11] At my direction the Registry advised Mr Mao, who is resident in China, that if he was to be self-represented he would have to be physically present at the hearing on 21 October 2019, otherwise he would have to instruct counsel. No response was received from Mr Mao until 14 October 2019 when Ms Mao wrote on behalf of Mr Mao seeking leave to represent Mr Mao pending a direction that Amicus Law was allowed to continue to act or a new legal representative was appointed.
[12] Mr Mao’s memorandum was referred to Green Land who reluctantly consented to Ms Mao appearing as an advocate at the hearing in order to ensure that the hearing was preserved. As a result, after considering the issue, I issued a Minute confirming that Ms Mao would be given leave to represent Mr Mao at the 21 October 2019 hearing but noting that “no further leave will be extended under any circumstances”.2
[13] It was therefore against this background that the various interlocutory applications went to hearing on 21 October 2019.3 These applications stand to be considered in the following order:
(a)Green Land application to strike out;
(b)Green Land application for particular discovery;
(c)Mao application to vary confidentiality orders;
(d)Green Land application to remove Amicus Law; and the
(e)Mao application for particular discovery.
2 It is noted the objection to Ms Mao is not just linked to the fact that she has no legal qualification. In addition, she finds it difficult to communicate in English and has given evidence on numerous occasions in the proceedings, to the extent that even if legally qualified she would be unable to act. Ms Mao is also the principal in at least one of the transactions that form the subject of the Green Land application for particular discovery.
3 [In addition, Green Land made a further application to sustain a caveat placed on Mr Mao’s property which proceeded separately].
[14]These will now be addressed in turn.
Green Land application to strike out
[15] It is immediately apparent that apart from the historic frustration experienced by Green Land in obtaining discovery from Mr Mao, set out in some detail in the first judgment, the only live issue with regard to non-compliance with extant discovery orders is whether Mr Mao complied sufficiently with those parts of the Green Land application for particular discovery he agreed to provide, and incorporated into consent timetable orders. Whether Mr Mao has other additional discovery obligations in terms of the remainder of the Green Land application for particular discovery stands to be dealt with in the next section of this judgment.
[16] In order to deal with the Green Land application to strike out the following questions must be determined:
(a)What did Mr Mao agree to provide in respect of the application for particular discovery?
(b)What did Mr Mao actually discover?
(c)Was what was discovered sufficient to comply with Mr Mao’s obligations?
(d)If no, should Mr Mao’s claim be struck out or other orders made?
What did Mr Mao agree to provide?
[17] The Green Land application for particular discovery sought discovery of a number of categories of documents from Mr Mao. These categories of documents related to the number of transactions in respect of part of the land that is the subject of the substantive litigation, Mr Mao’s property at 387 Ormiston Road, East Tamaki.4
4 It is noted that due to renumbering in the course of Green Land’s development Mr Mao’s property is also referred to as 423 Ormiston Road, East Tamaki, but for the purposes of this judgment will be referred to as 387 Ormiston road, throughout.
The transactions in respect of which Green Land sought particular discovery were described by Green Land in the following terms:5
(a)15 October 2012 – Liansen Mao entered into agreement to purchase 387 Ormiston Road from G R International Limited;
(b)30 October 2012 – Liansen Mao lodged caveat against title to 387 Ormiston Road;
(c)31 July 2013 – 387 Ormiston Road transferred to Te Ormiston Co Limited;
(d)31 July 2013 – 387 Ormiston Road transferred from Te Ormiston Co Limited to Dong Feng Lin pursuant to agreement for sale and purchase dated 7 July 2013;
(e)31 July 2013 – 387 Ormiston Road transferred from Dong Feng Lin to Liansen Mao pursuant to agreement for sale and purchase dated 7 July 2013;
(f)31 July 2013 – Liansen Mao mortgaged 387 Ormiston Road to Kookmin Bank;
(g)1 October 2014 – Kookmin Bank mortgage over 387 Ormiston Road discharged;
(h)1 October 2014 – 387 Ormiston Road mortgaged to Westpac;
(i)25 August 2015 – Dong Feng Lin lodged caveat against title to 387 Ormiston Road;
(j)3 July 2017 – Westpac Mortgage over 387 Ormiston Road discharged;
5 The description provided by Green Land also provided CT references, omitted for present purposes.
(k)4 July 2017 – 387 Ormiston Road mortgaged to Jiawen Mao;
(l)4 July 2017 – 387 Ormiston Road mortgaged to Guoping Niu;
(m)16 April 2018 – Yutian Li lodged caveat against the title to 387 Ormiston Road.
[18] A notice of opposition to the Green Land application for particular discovery was filed on behalf of Mr Mao which opposed the orders on the following grounds:
(a)Most of the documents sought by [Green Land] are not in [Mr Mao’s] possession. Should he be required to discover them, [Mr Mao] will require significantly more time so that he can make attempts to recover these documents so that they may be discovered.
(b)Some of the documents sought by [Green Land] were never, and are currently still not, in [Mr Mao’s] control:
(i)Evidence of the residence or location of Dongfeng Lin,
Guoping Niu and Yutian Li; and
(ii)Any agency or power of attorney relied on by Dongfeng Lin or Yutian Li.
(c)Furthermore, some of the documents that are being discovered are not relevant to the proceeding;
(i)All of the documents relating to transactions taking place prior to the parties entering into the agreement would neither prove nor disprove [Green Land’s] allegations [Mr Mao] caused various third parties to enter into sham transactions to hinder [Green Land’s] development project (the “Allegations”).
(ii)The use of funds obtained from the loans mortgaged over 387 Ormiston Road are also irrelevant to the Allegations.
[19]Despite this the notice of opposition went on to record:
Except for the documents identified at [[18](b) and (c) above], [Mr Mao] is willing to discover the other documents sought by [Green Land]. However, [Mr Mao] is suffering from serious health issues which is hindering his ability to participate effectively in the current litigation. Therefore:
(a)He requires 4 weeks extra time to look for the files that he is willing to provide; and
(b)Should [Green Land] insist him discovering the rest of the files and should he be required to discover them, he will require further time to
locate them. The exact amount of time should be determined once the scope of what he is required to discover is decided.
[20] Further details of the scope of the documents Mr Mao was willing to discover was provided by Mr Mao’s counsel in advance of the case management conference scheduled for 3 May 2019. This memorandum recorded:
As indicated by [Mr Mao’s] notice of opposition dated 26 April 2019, [Mr Mao] is willing to discover the documents as sought by [Green Land] at Schedule 1 of their application, except for:
(a)Documents relating to transactions prior to 25 March 2015. This is because the Land Owner’s Agreement was entered into on that date and therefore any transactions prior to 25 March 2015 cannot possibly be relevant to [Green Land]’s new allegations;
(b)Documents related to the use of loan funds mortgaged against 387 Ormiston Road. The only possible relevant documents to [Green Land’s] allegations would be those showing the drawdown of funds; and
(c)Documents which would never have been in [Mr Mao’s] possession or control, such as:
(i)Evidence of the residence or location of Dongfeng Lin, Guoping Niu and Yutian Li;
(ii)Any agency or power of attorney relied on by Dongfeng Lin or Yutian Li.
[21] Taken together these documents make it clear that Mr Mao objected to providing discovery in respect of the categories of documents identified by Green Land in [17](a)-(h) on the basis these were irrelevant given that the transactions identified took place prior to the Land Owner’s Agreement. In relation to the remaining categories of documents at [17](i)-(m) it is clear that subject to the specific reservations set out above Mr Mao otherwise agreed to provide discovery in respect of these categories. Whether Mr Mao should be required to discover the documents in the categories objected to will be considered in the next section dealing with the remainder of the Green Land application for particular discovery. In relation to the documents Mr Mao agreed to discover, by process of elimination this meant that Mr Mao had agreed to provide discovery in relation to the following categories of documents:
(a)25/08/2015 – Dong Feng Lin lodged caveat against title to 387 Ormiston Rd (“Caveat by Dong Feng Lin”):
·All supporting records evidencing the basis for the lodgement of the caveat, for example any sale and purchase agreement, loan agreement or other records evidencing a caveatable interest;
·Evidence as to the residency and location of the caveator.
(b)03/07/2017 – Westpac mortgage over 387 Ormiston Road discharged (“Discharge of Westpac Mortgage”):
·Mortgage and/or loan documentation in relation to the repayment/discharge, including settlement statement.
(c)04/07/2017 – 387 Ormiston Rd mortgaged to Jiawen Mao (“Mortgage to Jiawen Mao”):
·Mortgage and/or loan applications and agreements;
·Valuations or appraisals obtained in relation to the property;
·Bank statements evidencing draw down;
·Evidence as to the residency and location of the borrower when the agreement was entered into.
(d)04/07/2017 – 387 Ormiston Rd mortgaged to Guoping Niu (“Mortgage to Guoping Niu”):
·Mortgage and/or loan applications and agreements;
·Valuations or appraisals obtained in relation to the property;
·Bank statements evidencing draw down.
(e)16/04/2018 – Yutian Li lodged caveat against the title to 387 Ormiston Rd (“Caveat by Yutian Li”):
·All supporting records evidencing the basis for the lodgement of the caveat, for example any sale and purchase agreement, loan agreement or other records evidencing a caveatable interest.
What did Mr Mao discover?
[22] The delay in providing those documents in the supplementary list was detailed earlier in this judgment, Mr Mao eventually filing his supplementary list of documents on 27 June 2019 (“the Supplementary List”). In discovering a further 29 documents Mr Mao set out the following reservations:
(2)In para 2 and 3 of my previous affidavit I had explained that:
a.Some of the documents sought are not relevant; and
b.Certain other documents sought are clearly no in my control or possession,
(3)I also explained in para 4 of my previous affidavit that I had very little involvement in these transactions, Mr Augustine Lau had handled them and would have had the relevant documents. However, as he had explained in one of his affidavits, he had lost all his documents over incidents of theft and tenants throwing away his files. The bottom line is that I had no files in my possession. I had to ask for these documents from other people.
(4)Since I made my previous affidavit, I had made some efforts to recover some of these documents sought by [Green Land]. However, I have encountered some difficulties:
(a)Dongfeng Lin, who was a purchaser of my land and had lodged a caveat on my land, can no longer be located. After I had entered into the initial version of the development agreement with the defendant in October 2013, Ms Lin saw a lot of potential in my land and was interested in buying it. I entered into the sale and purchase agreement for 387 Ormiston Road with Ms Lin sometime in or about late 2013 to early 2014. By 2018, it was clear that there was no completion date in sight for [Green Land’s] development work, and at the same time with all the policy changes property development in New Zealand was no longer attractive or accessible to overseas investors, Ms Lin backed out. My documentations for this sale and purchase agreement with Ms Lin with a lawyer named Shean Singh, he had passed away sometime in 2014. After his passing his wife Ms Darsan Singh continues to operate Mr Singh's firm. I understand that in about March or April 2018 Mr Lau had contacted Ms Darsan Singh asking for my files. Ms Singh said she could not find my files. I and Mr Lau can no longer remember who represented Ms Lin, it could have either been Chen Gang or another lawyer named Mr Yong. But both these two lawyers are no longer practising, with Mr Gang Chen been struck off and Mr Yong had left New Zealand to Malaysia. As such I have been unsuccessful in retrieving documentations relating to the sale and purchase agreement with Ms Lin, and its subsequent caveat. However, upon reviewing the above, I am currently taking legal advice on whether I could apply to
lapse this caveat. Given that the concern [Green Land] has is really that the caveats may block [Green Land’s] development progress, removing the caveat should alleviate that concern.
(b)When I asked Yutian Li for documents relating to her caveat, she has refused to give them to me. Her reasoning was that she believes that [Green Land] may use her documents in other ways, outside this litigation, possibly against her. She says that is what [Green Land] had done with Ms Danfeng Zhang and Mr Lau's documents in their discovery application where they gave these documents to a handwriting expert. Regardless of whether she is right or wrong, I simply cannot obtain the files from her.
(c)I, however, was able to obtain some files relating to the sale of 41 Candia Road, Swanson, where she was the vendor and I was the purchaser. It was over this transaction that I owed her money, and I had later agreed to her to be able to caveat my land. The purchase price was 2.88 million. We agreed that I would pay her about 2 million in cash, with the rest $880,000 considered paid by way of granting her ownership of eight dwelling houses on my 387 Ormiston Road property. The way we did this deal was mostly by private agreement, the settlement statement for Candia Road does not properly reflect this. But I can confirm that the $288,000 deposit was not paid but considered paid by granting her about 3 dwelling properties, and the $500,000 (which shows up on the settlement statement as another sale and purchase agreement for Area A of 41 Candia road) was considered paid by granting her another 5 dwelling houses. Unfortunately, because of [Green Land’s] delay in completing their development work, which in turn delayed my own land development work, these dwelling houses were taken down by the Auckland Council in 2017 on the basis that they violated Resource Management Act and Building Act. And by 2018, 41 Candia Road no longer had its original value. It was on this basis I agreed that Ms Li can caveat 387 Ormiston road.
(5)I managed to retrieve most of the other files from my previous lawyers.
Was what was discovered by Mr Mao sufficient?
[23] The additional documents discovered by Mr Mao have been analysed by Michael Goodger on behalf of Green Land. Mr Goodger, a solicitor, compared the documents provided in the Supplementary List against the categories of documents Mr Mao agreed to provide in respect of five transactions set out in [21] above (grouping [21](c) and (d) together), and assessing the various explanations given by Mr Mao. Mr Goodger, whose expertise was not challenged for the purposes of the application, provided expert opinion evidence in his capacity as an experienced
conveyancing solicitor as to both the type of documents likely to be generated in respect of each of the transactions, as well as the extent to which the solicitors acting on the transactions would be required to retain copies.
[24] Having completed his analysis Mr Goodger concluded in summary that a number of identified documents would have been created. The documents Mr Goodger expected to find are annexed as the Appendix to this judgment.
[25] Assessing these categories against the 29 additional documents discovered, Mr Goodger concluded that the following documents had not been discovered by Mr Mao:
Caveat by Dongfeng Lin
There are no documents discovered by the plaintiff under this category. As it is my view that certain documentation must exist in relation to the First Transaction I consider the plaintiff to have failed to provide full discovery under this category.
Discharge of Westpac mortgage
The documents discovered by the plaintiff under the Second Category generally include those that I have stated must exist in my review of the Second Transaction. The significant exceptions are:
(a)the discharge authority provided by Westpac authorising the discharge of mortgage 9826889.2 has not been discovered;
(b)there is no discovery of correspondence between the plaintiff and his solicitors as to how the discharge of the Westpac mortgage was to be refinanced; and
(c)the trust account ledger discovered under DOC ID MAO.17.0001 records that the source of funds for repayment of the mortgage to Westpac was Liansen Mao and Jiawen Mao. I therefore expected there to be a copy of the solicitor's trust account bank statement confirming that the funds had been paid into the solicitor's trust account by Liansen Mao and Jiawen Mao.
I note that none of the documents listed above (which must exist) has been discovered by the plaintiff.
Registration of mortgages in favour of Jialing Mao and Guoping Niu –
As with the discharge of the Westpac mortgage, the documents discovered by the plaintiff under the Third Category generally include those that I have stated must exist (in my review of the Third Transaction). There are, however, some glaring omissions, as follows:
(a)according to the trust account ledger discovered under DOC ID MAO.17.0001 funds for repayment of the mortgage to Westpac had come from the joint account of the plaintiff and Jiawen Mao. Accordingly there must be (i) the solicitor's trust account bank statement confirming the deposit of funds from Liansen Mao and Jiawen Mao; and (ii) the joint bank statement(s) of Liansen Mao and Jiawen Mao showing the deposit of such funds by the mortgagees.
(b)whilst the authority and instruction forms from the mortgagees authorising the registration of the mortgage priority instrument have been discovered by the plaintiff, there is no discovery of the authority and instruction forms from the mortgagees authorising the registration of the mortgages (which is required in the case of non-institutional mortgagees). While on this topic, I have serious reservations about the authenticity of the mortgagees’ authority and instruction forms as they plainly do not comply with LINZ’s identification and verification guidelines, which requires the identity of the signatories to be verified by the practitioner personally or by a “trusted colleague” or a “delegate” who is known to and trusted by the practitioner to verify the signatory’s identity. In this instance, the identities of the mortgagees were verified by Lin Gan, who is apparently a cook from Melbourne, and Guoyun Zhang who is apparently a businessman based in Shanghai; neither of whom, in my view, qualify as “trusted colleagues” or “delegates” within the meaning of LINZ's identification and verification guidelines.
(c)There is no discovery of correspondence between the plaintiff (or his solicitors) and the mortgagees as to the terms of the mortgage loans and/ or confirmation of execution of the mortgage loans or registration of the mortgages.
Caveat by Yutian Li
The documents discovered by the plaintiff under this category include those numbered MAO.19.0001 - MAO.19.0004, all of which are simply standard conveyancing documents. Document MAO.19.0005 is unsigned so is not binding on either party. Considering the apparent complexity of the background to the caveat lodged by Yutian Li, as deposed by the plaintiff, I consider the plaintiffs response to his discovery obligations under the Fourth Category to be inadequate.
In my opinion, if, as deposed by the plaintiff, the background to the caveat involves a complex array of discounts, credits and contra deals, then the following documents must exist, but have not been discovered by the plaintiff:
(a)The plaintiff deposes at paragraph 4(c) of his affidavit dated 27 June 2019 that "the $288,000 deposit was not paid but considered paid by granting [Ms Li] about 3 dwelling properties". If that is true, then there must be concept plans/development plans relating to the "3 dwelling properties". There must also be sale and purchase agreements and/or documents evidencing "the grant" of those "3 dwelling properties".
(b)The plaintiff further deposes within the same paragraph that "the
$500,000 (which shows up on the settlement statement as another sale
and purchase agreement for Area A of 41 Candia Road) was considered paid by granting her another 5 dwelling houses". Again, if that was true, the concept plans/development plans and sale and purchase agreements and/or documents evidencing "the grant" of interest in those 5 dwellings have not been discovered.
(c)The settlement statement records that $500,000.00 was set-off against the purchase price "as per agreement dated 30 September 2015 re Area A of 41 Candia Road", however, that agreement has not been discovered.
(d)There also must be some reference to those matters in the plaintiffs solicitor's conveyancing file, as it would not be possible for the solicitor to prepare the trust account statement and/or confirm the accuracy of the settlement statement without receiving written confirmation from the plaintiff as to those matters (i.e. the deemed receipt of the deposit of $288,000.00 and the agreement dated 30 September 2015 regarding the $500,000 set-off against "Area A of
41 Candia Road") but the conveyancing file has not been discovered.
On the other hand, if the loan agreement was signed and it evidenced an actual advance of funds, as well as an obligation to provide security, then there must be some evidence of that arrangement and the advance of those funds to the plaintiff, including a signed agreement, trust account or personal bank account records of drawdown of funds, and relevant correspondence. None of this documentation has been discovered.
Discussion
[26] Having considered Mr Goodger’s analysis against the additional discovery provided by Mr Mao I have no doubt that the missing categories of documents he has identified could be reasonably expected to exist; and agree it is likely a substantial number remain in the control or possession of Mr Mao for the purposes of discovery in this case.
[27] The analysis provided by Mr Goodger has not been challenged and makes it clear that with regard to each of the five categories of documents in issue in the present application that all involved transactions requiring registration of dealings with land, and all would clearly have required Mr Mao to instruct a solicitor to act for him with regard to each of those transactions. Those transactions are also recent in origin (the oldest dating back to 2015 with the other four occurring in 2017-2018) which means there is no reason for the categories of documents identified by Mr Goodger as not
having been discovered by Mr Mao, not to be available from Mr Mao’s solicitor or solicitors.
[28] This is important as even if, given Mr Mao’s residence in China, his agent Augustine Lau or daughter Jiawen Mao arranged the legal advice for Mr Mao, Mr Mao would nonetheless remain the client on each of these transactions and therefore remains in control of the documents held by the solicitor instructed to act on those transactions. Furthermore, with particular reference to the explanation provided by Mr Mao in the Supplementary List, there is in fact no evidence that Mr Mao has ever personally approached the solicitors handling each of those transactions for his files. Although Mr Mao referred in the Supplementary List to obtaining documents from various solicitors no details have been provided of the inquiries made or whether such inquiries were made by Mr Mao personally. Likewise, with regard to the inquiries made in respect of the caveat by Dong Feng Lin, Mr Mao has confirmed he did have a solicitor on the transaction (Shean Singh) and there is no evidence before the Court to what extent Mr Mao, as opposed to Mr Lau, has formally requested his files relating to that transaction.
[29] In the circumstances I am satisfied that there clearly appear to be documents within Mr Mao’s control or possession that should have been discovered and have not been.
Should Mr Mao’s claim be struck out?
[30] The question therefore turns to whether the failure to make adequate discovery of the parts of the Green Land application for particular discovery Mr Mao accepted should be provided, should result in the strike out of Mr Mao’s claim.
[31] Rule 7.48(1) of the High Court Rules 2016 provides that if a party “fails to comply with an interlocutory order… a Judge may… make any order the Judge thinks just.” This rule “empowers a judge to strike out a pleading or enter judgment if, for example, a party persistently fails to comply with a discovery order”.6 The discretion
6 Kidd v van Heeren [2019] NZCA 275 at [42] and High Court Rules 2016, r 7.48(2).
lies with the Judge but where the delay results in “substantial prejudice”7 or where there has been “deliberate, blameworthy or contumelious conduct” this will be highly relevant to whether an order should be made.8
[32] Having considered the issues carefully I consider that it is in fact both premature and inappropriate for the order to be made. In particular:
(a)I take into account that Mr Mao had voluntarily agreed to provide discovery with regard to the five categories currently in issue without waiting for the Court to rule on the Green Land application for particular discovery, which as noted otherwise stands to be addressed in this judgment.
(b)Even if an order striking out Mr Mao’s claim is made it will not significantly reduce the issues to be addressed nor indeed appear to shorten these proceedings. In particular:
(i)Whether or not an order striking out Mr Mao’s claim is made Green Land still wish Mr Mao to participate in the proceedings through compliance with all aspects of the application for particular discovery, including completing discovery of the documents for which Green Land is seeking to strike out Mr Mao because those documents are significant with regard to the matters at issue in the Green Land counterclaim.
(ii)As noted unlike the earlier strike out application and the unless orders the current application is only to strike out Mr Mao’s claim against Green Land, not his defence to the counterclaim. The nature of the proceedings also means that in defending Green Land’s counterclaim as the Green Land application envisages, Mr Mao will in effect still be required to traverse his claims before the Court.
7 Commonwealth Reserves v Chodar HC Auckland CP73-SW/00, 18 July 2000 at [25].
8 At [34].
[33] In short, apart from removing risk for Green Land, the strike out order would otherwise have little practical effect and would seem to otherwise remove any incentive for future compliance on the part of Mr Mao with regard to further performance under the application for particular discovery.
[34] As a result, I conclude that the present application to strike out should be dismissed and Mr Mao should be provided one final opportunity to complete discovery of those documents identified by Mr Goodger which have not yet been discovered, as well as to discover any additional categories of documents identified in the next section of this judgment. This discovery will not only be the subject of an unless order but notwithstanding the dismissal of the present application, Green Land will also be entitled to costs on this application in any event. Details of the unless order are set out at the conclusion of this judgment.
Green Land application for particular discovery
[35] As noted in the preceding section, those parts of the Green Land application for particular discovery still requiring determination are:
(a)the categories of documents sought by Green Land with regard to transactions at 387 Ormiston Road pre-dating the Land Holder Agreement claimed by Mr Mao to be irrelevant. Those transactions are:
(i)15 October 2012 – Liansen Mao entered into agreement to purchase 387 Ormiston Road from G R International Limited;
(ii)30 October 2012 – Liansen Mao lodged caveat against title to 387 Ormiston Road;
(iii)31 July 2013 – 387 Ormiston Road transferred to Te Ormiston Co Limited;
(iv)31 July 2013 – 387 Ormiston Road transferred from Te Ormiston Co Limited to Dong Feng Lin pursuant to agreement for sale and purchase dated 7 July 2013;
(v)31 July 2013 – 387 Ormiston Road transferred to Dong Feng Lin to Liansen Mao pursuant to agreement for sale and purchase dated 7 July 2013;
(vi)31 July 2013 – Liansen Mao mortgaged 387 Ormiston Road to Kookmin Bank;
(vii)1 October 2014 – Kookmin Bank mortgage over 387 Ormiston Road discharged;
(viii)1 October 2014 – 387 Ormiston Road mortgaged to Westpac.
(b)the categories of documents otherwise excluded from the consent orders due to the objections of Mr Mao namely:
(i)proof of use of funds obtained by way of loans which Mr Mao claimed were irrelevant; and
(ii)documents relating to evidence of residence or location of the other parties to those various transactions, to which Mr Mao had claimed he was not in possession or in control.
[36] In addition, Green Land seeks orders for non-party discovery against the New Zealand Customs Service with regard to the movements of those involved in the transactions relating to 387 Ormiston Road. The non-party discovery application has never been opposed by Mr Mao, but was previously adjourned at the request of Green Land and therefore stands to be determined in the context of the present hearing.
Legal principles
[37] There is no dispute about the applicable legal principles. The requirements for an order for particular discovery are set out in r 8.19 of the High Court Rules and as Mr Illingworth has noted, the principles applicable were summarised by Asher J in Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd9 a four-stage approach was identified:10
(a)Are the documents sought relevant, and if so how important will they be?
(b)Are there grounds for belief that the documents sought exist? This will often be a matter of inference. How strong is that evidence?
(c)Is the discovery sought proportionate?
(d)Weighing and balancing those matters, in the Court’s discretion applying r 8.19, is an order appropriate?
[38] Likewise, r 8.21 of the High Court Rules sets out the requirements for non- party discovery. As with an order for particular discovery the documents sought on a non-party discovery application must be relevant and necessary.11
Green Land’s position
[39] With regard to the application for particular discovery Mr Illingworth submits that the remainder of the orders sought should be made. In his submission, all four factors set out in Assa Abloy are present and specifically that the remaining documents are relevant in order to “assist the court to establish the bona fides (or the lack thereof) of the various transactions entered into by Mr Mao and determine whether they are in fact shams”.
9 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760, [2018] NZAR 600.
10 At [14].
11 Vector Gas Contracts Ltd v Contact Energy Ltd [2014] NZHC 3171, [2015] 2 NZLR 670 at [28]- [30].
[40] Likewise, Mr Illingworth seeks the non-party discovery order as sought and notes that there remains no opposition to the orders being made.
Discussion
[41] The key issue with respect to both the remaining categories of the application for particular discovery and the non-party discovery application is relevance. In particular, having had the opportunity to consider the affidavits filed on behalf of Green Land, it is clear that the documents that Mr Mao had agreed to provide are indeed directly relevant to the matters at issue in the substantive proceedings. This is because there is a clear issue raised by Green Land that the actions taken by Mr Mao with regard to the encumbrances placed on the title of 387 Ormiston Road since the Land Owner Agreement was executed in April 2015 either amount to a breach of the Land Owner Agreement by Mr Mao or otherwise mean that Green Land is not in breach of its obligations.
[42] The same cannot be said for the remaining categories of documents for which Green Land seeks an order for particular discovery against Mr Mao. First, with regard to the transactions that pre-dated the Land Owner Agreement in April 2015, I am unable to see any relevance to the matters at issue between the parties, defined by the pleadings filed in the Court. Specifically, while Matthew Kemp, a forensic accountant instructed on behalf of Green Land, has identified the various transactions on 387 Ormiston Road that underpinned the Green Land application for particular discovery and in his annexed report had noted “there appears to be some unusual transactions relating to the 387 Ormiston Road property”, he does not however specify why the transactions that pre-date the Land Owner Agreement are unusual, let alone relevant for the purposes of these proceedings.
[43] A closer look at these transactions predating the Land Owner Agreement instead shows the transactions relate primarily to Mr Mao’s acquisition of 387 Ormiston Road, with the particular focus of Green Land, detailed in an affidavit by Hao Yuan Lu, being that these transactions show examples of what he describes as “hydraulic price fixing”, by Mr Mao and various associates.
[44] However, apart from claiming to have insufficient knowledge and therefore denying the allegation that Mr Mao is the sole legal and beneficial owner of 387 Ormiston Road,12 Green Land’s amended statement of defence and counterclaim nonetheless confirms that the Land Owner Agreement is between Mr Mao and Green Land, and to the extent that Mr Mao became the owner of 387 Ormiston Road through any form of “hydraulic price fixing” arrangement it would appear to be entirely irrelevant to the matters at issue between the parties.
[45] Likewise, the issue to which funds were put also appears irrelevant. As Mr Mao accepted it is clearly important for the purposes of determining whether the encumbrances placed on the title to 387 Ormiston Road were shams to know whether the loans purportedly secured were ever drawn down, but it is difficult to see on the evidence currently before the Court why the use to which those funds were put is in any way relevant. I therefore conclude that no order for particular discovery is appropriate for these two categories of documents.
[46] The issue with the remaining category of documents is slightly different. Green Land is seeking that Mr Mao disclose information relating to the whereabouts or residence of the other parties to the transactions and specifically Dong Feng Lin, Jiawen Mao, Guoping Niu and Yutian Li. As I have made clear the only relevant transactions are those that took place after the signing of the Land Owner Agreement in April 2015. It also follows that any information with regard to the residence of the other parties to those transactions that may be relevant is limited to information with regard to their whereabouts as at the date those transactions were entered into. It therefore follows that the consent orders already made in relation to those transactions are already sufficiently wide to require Mr Mao to provide whatever information he, or his solicitors have, that is relevant to those transactions. This therefore must include any information within Mr Mao’s possession or control that tends to show the parties to those transactions did not in fact execute any particular transaction or transactions. Further specific orders are accordingly not required.
12 Amended statement of defence and counterclaim to second amended statement of claim dated 1 April 2019 at paragraph 1.
[47] Taking these various matters together the remainder of the application for particular discovery against Mr Mao is accordingly dismissed.
[48] Conversely, and noting that the Green Land application for non-party discovery is not opposed, I accept it is appropriate for the application for non-party discovery with regard to the New Zealand Customs Service to be granted but limited in scope to the movements of the various persons identified as between August 2015 and April 2018.
Mao application to vary confidentiality restrictions
[49] Mr Mao’s application to vary confidentiality restrictions has arisen as a result of additional discovery provided by Green Land under its own supplementary affidavit of documents, sworn by Hao Yuan Lu on 14 December 2014 (“the Green Land supplementary list”). The Green Land supplementary list included a file from Candor3 under the reference GLI.004.0145, Candor3 having been Green Land’s engineering and planning consultants in relation to the development undertaken by Green Land which is the subject of the substantive proceedings. Although the Green Land supplementary list had not specified that the Candor3 documents were confidential, this was asserted by Green Land prior to inspection occurring. As a result, Green Land requested confidentiality undertakings from Mr Mao and his solicitors prior to making the documents available. This was agreed to by Mr Mao. Subsequently both Mr Mao and one of his solicitors provided the undertaking sought by Green Land and the Candor3 file was made available for inspection on this basis.
[50] Mr Mao subsequently requested that other professional advisors be allowed to view the Candor3 documents, together with Mr Lau and Jiawen Mao. As no agreement was able to be reached by the parties at the case management conference on 3 May 2019, Mr Mao was directed to file an application “with regard to who on behalf of the plaintiff is entitled to review the confidential documents”.
[51] The resulting application sought orders that the following five people be permitted to view the Candor3 documents:
(a)Stanley Feng;
(b)Boubacar Coulibaly;
(c)Lily (Xiaoli) Wu;
(d)Augustine (Ee Kuoh) Lau; and
(e)Jiawen Mao.
[52] Immediately after the application was filed Green Land confirmed that it had no objection to Mr Feng (a planning consultant), Mr Coulibaly (a civil and commercial engineer) and Ms Wu (a translator) having access to the documents for the purpose of advising Mr Mao, subject to each executing confidentiality undertakings. At the same time, Green Land opposed the release of the Candor3 documents to Mr Lau or Jiawen Mao stating in its notice of opposition that:
(a)Mr Lau is “an undischarged bankrupt who is known to have a complete disregard for the law and the authority of the court”.
(b)Jiawen Mao is “an ex-partner and as associate of Mr Lau who is known to be “under the influence and direction of Mr Lau well beyond any reasonable consideration”.
[53]Green Land further submitted:
(a)it is unnecessary for the confidential documents to be disclosed to Mr Lau and Ms Mao in order for the plaintiff to properly conduct the present litigation; and
(b)if the confidential documents were disclosed to Mr Lau and Ms Mao, there is a real likelihood that they would use the confidential documents for an improper purpose to the detriment of the defendant.
The position of Mr Mao
[54] In various documents filed on behalf of Mr Mao, Jiawen Mao noted the fact that confidentiality was not originally claimed for the Candor3 documents and raised questions as to whether they should properly be regarded as confidential. In addition, Ms Mao argued that:
Both Mr Lau and I need to view the documents, otherwise [Mr Mao] will not be able to conduct this litigation properly. Both of us have been intimately involved in the litigation as [Mr Mao]’s agents. [Mr Mao] lives in China and is heavily dependent on Mr Lau and I to assist him.
[55] In particular Ms Mao notes that Mr Lau negotiated the Land Owner Agreement between Mr Mao and Green Land which is at the centre of the substantive proceedings and has dealt with Green Land regarding the performance of the Land Owner Agreement and subsequent dispute.
[56] Ms Mao also stated she does not understand why Green Land would think that either she or Mr Lau would disclose the confidential documents and notes that if she signed a confidentiality undertaking she would not disclose it to Mr Lau.
Discussion
[57] The Candor3 documents have been summarised by Mr Illingworth on behalf of Green Land in the following terms:
They comprise documents that were intended to be private and confidential including internal memoranda, tenders, costings, quotes, financial information, funding arrangements and working papers generated and/or received by or generated by Green Land’s engineer to contract during the course of Green Land’s subdivision.
They also include plans, drawings and specifications prepared by its engineer, Candor3, the intellectual property in which are expressly retained by Candor3 pursuant to the Agreement for Consultant Engagement between Green Land and Candor3.
[58] Although Ms Mao has questioned the basis for the confidentiality she has not in fact disputed the summary set out above. Furthermore, it is clear that Green Land provided the documents to Mr Mao and his solicitors only after Mr Mao had accepted the basis for the confidentiality asserted. In such circumstances it is now too late to
suggest that the documents are not in fact confidential in the absence of compelling reasons.
[59] Likewise, while it appears clear that both Mr Lau and Ms Mao have played a central role in Mr Mao’s dispute with Green Land and, in particular, with regard to the issues surrounding the Land Owner Agreement it is by no means clear that either has the expertise to consider what are essentially technical documents prepared by Candor3. Any technical analysis can clearly be provided by Mr Feng and Mr Coulibaly and to the extent that either or both need to obtain background information about the matters in dispute, that can be provided to them by Mr Lau and Ms Mao. In the circumstances I therefore agree with Mr Illingworth that it is not necessary for either Mr Lau or Ms Mao to have personal access to the Candor3 documents.
[60] I also accept that Green Land have a well-founded concern that if Mr Lau and/or Ms Mao are given access to the Candor3 documents, not only will confidentiality not be able to be controlled or maintained but the information therein could well be used for improper purposes. In particular Mr Lau is well known to the courts of New Zealand for his actions in a series of cases involving development under the Resource Management Act, the Court of Appeal having described Mr Lau as a person who has “demonstrated … a complete disregard for the law”,13 while the Environment Court referred to Mr Lau orchestrating an “extensive and sustained pattern of illegal development”, in which Mr Mao was also implicated.14 Likewise with regard to Ms Mao, the District Court has expressed concern “at the level of influence that Mr Lau [has] had upon [her] actions” and that she had “remained under the influence and direction of Mr Lau, well beyond any reasonable consideration”.15 With regard to the latter, the close relationship between Mr Lau and Ms Mao was clearly evident at the hearing of the current applications in the High Court as I was able to observe Ms Mao’s demonstrated reliance upon Mr Lau in the hearing before me.
13 Lau v R [2018] NZCA 151 at [23].
14 Auckland Council v Lau [2018] NZEnvC 141 at [13].
15 Auckland Council v Jiawen Mao [2018] NZDC 17092 at [11]-[12].
[61] Finally, in relation to this application I accept Green Land’s submissions that the requirement for confidentiality orders in this case in fact goes no further than r 8.30(4)(b) of the High Court Rules 2016 which provides that:
A party who obtains a document by way of inspection … must not make it available to any other person.
[62] Taking these various matters into consideration I therefore decline to vary the confidentiality restrictions previously agreed to between Mr Mao and Green Land other than as already accepted by Green Land, that is the Candor3 documents can be made available to Mr Feng, Mr Coulibaly and Ms Wu once each of those has signed confidentiality undertakings in the form previously executed by Mr Mao and his solicitors.
Green Land application to remove Amicus Law
[63] As noted earlier in this judgment the Green Land application to remove Amicus Law formed part of the Green Land application to strike out. The original application lacked specificity as to the reasons why Amicus Law should withdraw from representing Mr Mao in these proceedings and simply stated:
(a)the conduct and advice of members and/ or employees of the law firm known as “Amicus Law” is now in question in these proceedings;
(b)one or more members of the law firm known as “Amicus Law” will be required to give evidence in these proceedings concerning contentious issues; and
(c)for Amicus Law to continue to act in these proceedings as the plaintiff’s lawyers would be contrary to their legal or ethical obligations and would be contrary to the interests of justice.
[64] In an affidavit in support of the application Hao Yuan Lu identified a number of transactions in which Amicus Law had “acted for the plaintiff’s associates [in] which the defendant believes to be part of price hydraulic scams perpetuated by the plaintiff and or his associates”. Mr Lu goes on to identify two former staff solicitors
of Amicus Law as having acted for various parties and that one of the principals of Amicus Law had signed a settlement statement in relation to one of the transactions. The transactions detailed by Mr Lu do not directly involve 387 Ormiston Road. Instead Mr Lu has detailed transactions involving:
(a)the transfer of a property at 41 Candia Road by Yutian Le to Liansen Mao;
(b)the transfer of a property at 43 Candia Road by Cheng Jiang Wu to Meijuan Chen;
(c)the mortgage of the property at 43 Candia Road by Meijuan Chen to Westpac New Zealand Ltd;
(d)the transfer of a property at 32 Weranui Road by Shiren Zhang to Meijuan Chen;
(e)the mortgage of a property at 56 Albany Highway by Ying Yue Zhang to Westpac New Zealand Ltd; and
(f)the mortgage of a property at 436 Paremoremo Road by Ying Qiu Zhang to Westpac New Zealand Ltd.
[65] In an earlier affidavit Mr Lu had explained why he considered these transactions to have been suspicious as examples of what he described as hydraulic price fixing arrangements of the type described in the previous section of this judgment. What Mr Lu does not do however is describe how the fact that Mr Mao and/or various associates’ involvement in the transactions specified is relevant to the matters at issue in these proceedings, although I note Mr Mao has discovered some documents in respect of the 41 Candia Road transaction on the basis that this transaction gave rise to the caveatable interest claimed by Yutian Li.16
[66] The position is not helped by the fact that Green Land and its counsel had understood that Mr Mao had terminated his engagement of Amicus Law and therefore no submissions in support of the application were presented at the hearing before me.
16 See [22] above.
As I discussed with Mr Illingworth, the documents filed on behalf of Mr Mao are however clear that Mr Mao had become self-represented only until the issue as to whether Amicus Law was able to continue acting for him had been determined.
[67] The Court of Appeal in Accent Management Ltd v Commissioner of Inland Revenue set out that:17
The Court has jurisdiction to debar counsel or solicitors from acting where that is necessary in order for justice to be done or to be seen to be done. Removal will usually be ordered where counsel will not be able to comply with his or her duties to the Court: where there is a conflict of interest, or where there is a real risk that a client will not be represented with objectivity. The threshold for removal is a high one, requiring something extraordinary. The Court should guard against allowing removal applications to be used as a tactical weapon to disadvantage the opposing party.
(Footnotes omitted)
[68] For similar reasons as I have previously determined in this judgment, that the transactions with regard to 387 Ormiston Road prior to the execution of the Land Owner Agreement in April 2015 are not relevant, I likewise conclude that the fact that Amicus Law was involved in the various transactions detailed by Mr Lu also have no apparent relevance to any of the allegations contained in the pleadings filed. Even the fact that Amicus acted for Ms Li on the 41 Candia Road purchase is far too remote to require Amicus Law to withdraw. I therefore conclude that the fact that Amicus Law may have been involved in the various transactions identified is substantially irrelevant to the matters at issue in these proceedings and no basis has therefore been established that would require Amicus Law to withdraw from representing Mr Mao. The Green Land application to remove Amicus Law is therefore dismissed.
Mao application for particular discovery
[69] The Mao application for particular discovery purports to seek an order for particular discovery against Green Land, the “ANZ Bank” and the Pearl Fisher Trustee Limited. Two of the categories of documents subject to the application are described only with references to mortgage and caveat numbers and CT references which makes
17Accent Management Ltd v Commissioner of Inland Revenue [2013] NZCA 155, [2013] 3 NZLR 374 at [32].
it almost impossible to ascertain either what exactly is being sought by Mr Mao or its relevance to the substantive proceedings. The remaining categories of documents sought do not appear to be discoverable at all, rather being lists of lawyers who have represented various specified individuals and/or their companies for reasons that are not set out, which appears to be an attempt on behalf of Mr Mao to avoid approaching lawyers to act for him if they have in the past acted for the directors of Green Land.
[70] The difficulty in understanding what is sought in the application is compounded by the lack of any supporting submissions or evidence explaining in more detail than the application itself what is sought, nor is it even clear that the application has been served on either the ANZ Bank or the Pearl Fisher Trustee Limited, let alone who the Pearl Fisher Trustee Limited is and where it fits in the proceedings.
[71] In the circumstances, it is clear that on the information provided on behalf of Mr Mao, this application does not meet even the first part of the test set out in Assa Abloy, that the documents must be relevant, and the application is dismissed accordingly.
Decision
[72]In summary therefore:
(a)the Green Land application to strike out is dismissed;
(b)the Green Land application for particular discovery, except to the extent that was the subject of consent orders in relation to the transactions set out at [21] and the non-party discovery application against the New Zealand Customs Service, is dismissed;
(c)the Mao application to vary confidentiality orders is dismissed;
(d)the Green Land application to remove Amicus Law is dismissed; and
(e)the Mao application for particular discovery is dismissed.
[73] Although, as will be apparent from this judgment, Mr Mao has had some success, overall I conclude Green Land is entitled to costs on the various applications. This is to be recognised through making an order for costs in favour of Green Land on a 2B basis in respect of the Green Land application to strike out, the Mao application to vary confidentiality orders and the Mao application for particular discovery with costs on the other applications lying where they fall.
[74] Mr Mao will have a final opportunity to provide adequate discovery with regard to the categories of documents set out at [21](a) – (e) above with his discovery to be informed by the analysis provided by Mr Goodger in the Appendix and [24] above. Taking into account the current Level 3 lockdown in New Zealand as well as the situation in China in response to the Coronavirus pandemic, a further supplementary list of documents is to be filed on or before 12 June 2020. In the event that a further supplementary list is not filed as directed, complying fully with this judgment and the requirements of the High Court Rules 2016, Mr Mao’s claim and defence to counterclaim will, without further notice to Mr Mao or mention in Court, stand dismissed.
[75] A list of documents on behalf of the New Zealand Customs Service is to be filed on or before 5 June 2020 with the costs of that list to be met by Green Land.
Powell J
Appendix
(a)Caveat by Dong Feng Li:
·a signed copy of the agreement dated 8 August 2013 on which the caveator’s claim to a right to lease and to purchase a part of the property is based;
·bank records showing the payment of the prepaid rent by the caveator as a lump sum;
·bank records showing receipt of any deposit paid by the caveator to secure its rights under the claimed agreement for sale and purchase of part of the property;
·correspondent between the registered proprietor and the caveator subsequent to 8 August 2013 regarding the use of that part of the property claimed to have been leased to the caveator;
·invoices issued by the registered proprietor and addressed to the caveator for any outgoings incurred by the caveator under the prepaid lease; and
·notice on or around August 2017 from either party addressed to the other of the need to renew the prepaid lease as from 8 August 2017.
(b) Discharge of Westpac Mortgage:
·a request addressed to the bank to authorise the discharge of mortgage and to provide a settlement statement;
·an authority for the discharge provided by the bank;
·a settlement statement provided by or on behalf of the bank;
·bank generated payment records showing the movement of funds in repayment of the mortgage from the solicitor’s trust account to the bank;
·written confirmation of repayment addressed to the bank or the bank’s solicitors;
·correspondence between Mao and his solicitors in respect of the discharge of the Westpac mortgage and how Mao expected to be able to repay the loan and
·either an entry in the solicitor’s trust account recording the ultimate source of funds for repayment of the mortgage to Westpac, or a bank statement showing the direct deposit of such funds to the mortgagor’s account by the mortgagees.
(c) Mortgage to Jiawen Mao/ Mortgage to Guoping Niu:
·in each case, loan documentation setting out the extent of the debt to be secured by the mortgage;
·authority and instruction forms from the mortgagees, Guoping Niu and Jialing Mao, and the registered proprietor, Liansen Mao, authorising the registration of the mortgages;
·authority and instruction forms from the mortgagees, Guoping Niu and Jialing Mao, and the registered proprietor, Liansen Mao, authorising the registration of the mortgage priority instrument;
·evidence of the consent of the caveator to the registration of the mortgages;
·correspondence to or from the solicitor regarding the source of funds for the repayment of the existing mortgage to Westpac;
·either, an entry in the solicitor’s trust account recording the ultimate source of funds for repayment of the mortgage to Westpac, or a bank statement showing the direct deposit of such funds to the mortgagor’s account by the mortgagees;
·email or facsimile correspondence between Mr Mao (or his solicitors) and the mortgagees regarding the terms of the term loan agreements; and
·email or facsimile correspondence between Mr Mao (or his solicitors) and the mortgagees confirming the execution of the term loan agreements and the registration of the mortgages and the mortgage priority instrument (or at least undertakings from the mortgagor’s solicitors to that effect) prior to drawdown of the mortgage loans.
(d) Caveat by Yutian Li:
·the agreement for sale and purchase relating to 41 Candia Road;
·the solicitor’s conveyancing file, including any references on the file to the crediting of the deposit without actual payment and the reversal of the credit for Area A, as well as any other correspondence or documentation on the conveyancing file which may throw light on the circumstances leading to the caveat;
·a signed copy of the agreement dated 1 April 2018 on which the caveator’s claim to an equitable mortgage over the property is based;
·trust account records, or the mortgagor’s personal bank records, showing the payment of the loan amount recorded in the loan agreement; and
·correspondence between the parties or their solicitors regarding entry into the loan agreement, including the rationale for the loan of $800,000.
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