Mao v Green Land Investments Limited

[2018] NZHC 1348

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-1241

[2018] NZHC 1348

BETWEEN

LIANSEN MAO

Plaintiff

AND

GREEN LAND INVESTMENT LIMITED

Defendant

CIV-2018-404-911

BETWEEN

LIANSEN MAO
Plaintiff

AND

GREEN LAND INVESTMENT LIMITED

Defendant

Hearing:

25 and 29 May 2018

Appearances:

D Zhang for the Plaintiff

G M Illingworth QC for the Defendant

Judgment:

8 June 2018

JUDGMENT OF POWELL J

This judgment was delivered by me on 8 June 2018 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:

R Zhao, Amicus Law, Auckland David Liu, Dominion Road, Auckland Counsel:

G M Illingworth QC, Auckland Daniel Zhang, Auckland

MAO v GREEN LAND INVESTMENT LIMITED [2018] NZHC 1348 [8 June 2018]

[1]    The defendant, Green Land Investment Ltd (“Green Land”) seeks the following orders:

(a)That the plaintiff, Liansen Mao, be disbarred from further participation in CIV-2016-404-1241 (“the 2016 proceedings”). In particular Green Land seeks that Mr Mao’s claim and his defence to Greenland’s counter-claim be struck out for want of prosecution pursuant to r 15.2(a) of the High Court Rules 2016 (“the Rules”) as a result of Mr Mao’s ongoing failure to provide an affidavit of documents.

(b)If Mr Mao is not debarred from the 2016 proceedings he is ordered to pay security for costs, pursuant to r 5.45 of the Rules, on the grounds that Mr Mao is resident overseas and there is evidence filed on his behalf that indicates he would not be able to pay any costs ordered in the event that his claim was unsuccessful.

(c)An order that Mr Mao’s proceedings in CIV-2018-404-911 (“the 2018 proceedings”)  are  struck  out  as  an  abuse  of  process  pursuant  to  r 15.1(1)(d) of the Rules on the grounds that they are a duplicate of the 2016 proceedings.

[2]    The applications are opposed by Mr Mao. Mr Zhang, on behalf of Mr Mao, submits that any failure to provide discovery has been overstated, and while conceding Mr Mao lives in China, Mr Zhang submits that there is evidence before the Court that Mr Mao owns substantial property in New Zealand and is therefore able to pay costs ordered in the event his claim is unsuccessful. With regard to the 2018 proceedings Mr Zhang submits that these disclose a new cause of action and, rather than striking out the proceedings, seeks consolidation of the 2016 and 2018 proceedings.

[3]There are therefore three issues to be determined:

(a)Should Mr Mao’s claim and defence to counter-claim in the 2016 proceedings be struck out for want of prosecution?

(b)If not, should Mr Mao be ordered to pay security for costs?

(c)Should the 2018 proceedings be struck out as an abuse of process?

Should Mr Mao’s Claim and Defence to Counter-Claim in the 2016 proceedings be struck out for want of prosecution?

[4]    In support of the application Mr Illingworth QC, on behalf of Green Land, submitted that  Mr  Mao’s  claim  should  be  disbarred  for  want  of  prosecution. Mr Illingworth noted that after the proceedings were commenced in June 2016, discovery was ordered by Associate Judge Bell in December 2016. Associate Judge Bell’s timetabling order was designed to get the proceedings to a three-day hearing scheduled for October 2017, and required both sides “to file and serve affidavits of documents following the standard protocol by 31 March 2017”. As Mr Mao took no steps to file an affidavit of documents, Green Land applied for an order adjourning the October fixture and seeking that Mr Mao’s claim in defence be disbarred.

[5]    Mr Illingworth noted that following the adjournment of the October fixture Mr Mao had remained in breach of his obligation to file an affidavit of documents, despite subsequent timetabling orders made by Gordon J in October 2017 and Palmer J in November 2017, and notwithstanding the filing of documents purporting to be affidavits of documents on behalf of Mr Mao; by Mr Mao’s daughter, Jiawen Mao, on 6 November 2017 and 24 May 2018 and by Mr Mao’s “agent” Augustine Lau on 6 December 2017. Mr Illingworth noted that none of the purported affidavits of documents were sworn by Mr Mao as required by r 8.24(2)(a) of the Rules, that the documents filed are otherwise not consistent with rr 8.15 and 8.16 of the Rules to the point where even Ms Mao’s most recent document, filed the evening before the present hearing, is “bland and unintelligible” and fails to identify with any precision the documents purportedly listed. In Mr Illingworth’s submission the conduct of Mr Mao is “outrageous” and “reeks of game playing”. He submits the time has come for the Court to say “enough is enough” and not let Mr Mao proceed further with his claim. In the event Mr Mao’s claim and defence to counter-claim is struck out, Mr Illingworth seeks Green Land’s counter-claim to be set down for formal proof.

Discussion and Analysis

[6]    Having reviewed the proceedings carefully I do not consider it is appropriate for Mr Mao’s claim and defence to counter-claim to be struck out or otherwise disbarred at this time.

[7]    While it is clear that Mr Mao has not complied with, and indeed remains in breach of, his obligation to provide an affidavit of documents, the position is in fact considerably less clear than submitted on behalf of Green Land, and there are in fact a number of relevant factors that make it inappropriate to strike out Mr Mao’s claim and defence to counter-claim:

(a)While Associate Judge Bell made a timetabling order in December 2016, Mr Zhang was correct in submitting the requirement for both parties to file affidavits of documents by 31 March 2017 was in fact effectively overtaken by events. This occurred as a result of additional time granted by Woolford J on 29 March 2017 for both parties to file amended pleadings in respect of the counter-claim, a process that was not ultimately completed until 18 May 2017.

(b)As a result, neither party filed an affidavit of documents in accordance with Associate Judge Bell’s timetabling order.

(c)Despite this, it is clear that Mr Mao, rather than attempting to delay matters, was in fact working towards the scheduled October 2017 hearing.   In particular in June 2017 he filed a brief of evidence by   Mr Lau in support of his claim, in accordance with Associate Judge Bell’s timetabling order. At the time the brief of evidence was filed no issue appears to have been taken with that filing by Green Land, although no briefs of evidence on behalf of Green Land were subsequently filed.

(d)While Green Land filed its application on 25 August 2017 seeking to disbar Mr Mao for failure to provide an affidavit of documents,  Green Land had itself been in breach of the same timetabling order until

the day of the application, when its own affidavit of documents was belatedly filed.

(e)Rather than focusing on Green Land’s application to disbar Mr Mao, the Court’s response was to focus on the application to adjourn the October fixture. As a result, while Heath J vacated the October 2017 fixture, no further orders were made in relation to completion of discovery by Mr Mao. Instead the proceedings were set down for a comprehensive case management conference to get the proceeding back on track.

(f)The case management conference took place on 11 October 2017 before Gordon J. Far from attempting to delay proceedings Mr Zhang in fact sought comprehensive timetabling orders to get the proceeding through to trial. As Mr Illingworth submitted and Gordon J agreed however, the focus by this time was on the completion of Mr Mao’s discovery and as a result the orders made by Gordon J related entirely to the issue of discovery, and in particular directed Mr Mao to file and serve an affidavit of documents following the standard protocol by 8 November 2017.

(g)It is at this point that the first “affidavit discoveries of documents” by Ms Mao was filed. While this document was clearly inadequate on its face, clarification of the position did not occur as it was purportedly filed at the same time as Mr Zhang sought leave to withdraw as counsel, an application subsequently granted by Palmer J when the proceedings came before him on 27 November 2017. Palmer J clearly did not accept that a compliant affidavit of documents had been filed by Mr Mao as he directed “Mr Mao must file in the Court and serve on [Green Land] an affidavit of discovery that complies with his obligations by 5.00 pm Wednesday 6 December 2017”. In the event that the affidavit was not filed as directed, Palmer J also directed that the proceedings be listed in the Duty Judge list of the week of 11 December 2017 whereupon Green Land’s application to dismiss Mr Mao’s claims for want of

prosecution could be considered. At the same time however Palmer J recorded that Mr Lau indicated that he had been assigned Mr Mao’s interest in the proceedings. At that stage Palmer J noted “Mr Lau is not a party to this proceeding and cannot represent Mr Mao”. Nevertheless, it was this issue rather than discovery which then dominated the proceeding for the next few months.

(h)In the meantime, and prior to the next call of the proceedings in December 2017, Mr Lau filed his own “affidavit discoveries of documents” on 6 December 2017. If anything this document was even less compliant than that filed by Ms Mao. When the proceedings were called before Lang J however the focus was, as noted, on the standing of the plaintiff rather than compliance with discovery, with Mr Lau continuing to assert he was entitled to be substituted as plaintiff. As a result Lang J directed that if Mr Lau wished to be substituted as a plaintiff he had to file an appropriate application, and allocated a two- hour fixture on 22 March 2018 for that application to be heard. Lang J made it clear that it was only after the application for substitution had been dealt with that the issue of discovery could be addressed, and noted in particular:

Provided Mr Lau is substituted as plaintiff he will need to be in a position on 22 March to advise the court how the newly substituted plaintiff proposes to deal with discovery obligations in a timely and cost effective manner.

(i)In the event no documents were filed in relation to the application to substitute Mr Lau as plaintiff until 4.49 pm on 21 March 2018, with the result that the application could not proceed as scheduled. At the conference in front of Lang J on 22 March 2018 Mr Zhang re-entered the fray on behalf of Mr Mao. The application for substitution was adjourned until 25 May 2018, with Lang J also directing that Green Land’s 25 August 2017 application for disbarment be adjourned to the same date. As a result of the delays caused with regard to the substitution application Lang J ordered costs in favour of Green Land, and also ordered that those costs, together with costs awarded against

Mr Mao earlier in the proceedings, be paid in any event otherwise Mr Mao’s claim would be struck out. Those costs were subsequently paid.

(j)In the event Mr Lau subsequently abandoned his application to be substituted as plaintiff. The focus of the 25 May hearing was therefore Green Land’s 25 August 2017 application, together with Green Land’s application for security for costs which had been made in the interim.

[8]    As can be seen the changing focus of the proceedings, aggravated by the fact that Mr Mao was unrepresented for a considerable period, while clearly frustrating for Green Land, does  not fit comfortably within the type of scenario envisaged by         r 15.2(a) and in particular the necessity for “inordinate delay” as discussed in Lovie v Medical Assurance Society NZ Ltd:1

[T]he applicant must show that the plaintiff has been guilty of inordinate delay, that such delay is inexcusable, and that it has seriously prejudiced the defendant. Although these considerations are not necessarily exclusive, and at the end one must always stand back and have regard to the interests of justice, in this country, ever since New Zealand Industrial Gases Ltd v Andersons Ltd [1970] NZLR 58 it has been accepted that if the application is to be successful, the applicant must commence by proving the three factors listed.

[9]    The chronology set out in [7] above does not disclose such a delay. As a result I am satisfied the sequence does not disclose a want of prosecution on the part of Mr Mao. On the contrary it is clear that Mr Mao has tried to advance matters, including filing Mr Lau’s brief of evidence as well as seeking comprehensive timetabling orders in October 2017, albeit without apparently realising the need to first comply with his discovery obligations.

[10]   At the same time it is clear that the application by Green Land to strike out Mr Mao’s claim and defence to counter-claim was filed Green Land itself had only the same day remedied its own breach of Associate Judge Bell’s directions (to the extent that it was indeed a breach, given that the pleadings had not in fact been finalised prior to the filing date for affidavits of documents). As a result it is apparent that at the time it was filed Green Land’s application was both opportunistic and premature. Had it

1      Lovie v Medical Assurance Society NZ Ltd [1992] 2 NZLR 244 (HC) at 248.

been considered by the Court at the time it was filed there would have been no prospect of the application succeeding; at most the Court would have ordered some sort of timetable extension to enable the filing of an affidavit of documents  on behalf of  Mr Mao, as subsequently ordered when the proceeding came before Gordon J. The Rules do not envisage a situation where an application filed prematurely could over a prolonged period of time build enough momentum to enable the other party’s claim to be struck out.

[11]   Finally I note that a considerable part of the delay can be attributed to the issue of Mr Lau’s abortive attempt to be substituted or added as a plaintiff, a matter for which Mr Mao has already had to pay Green Land substantial costs, on the basis it was made with Mr Mao’s consent.

[12]   Ultimately I accept Mr Zhang’s submission that far from Mr Mao being in persistent breach of timetabling orders for an inordinate period, a more complex picture emerges which has meant that the discovery process has not been case managed as closely as it should have been, and which has resulted in discovery still not being completed, notwithstanding Ms Mao’s latest affidavit, which as Mr Zhang confirms still fails to comply with the relevant Rules.

[13]   Taken together, and notwithstanding Mr Mao has not yet been able to complete discovery, I do not consider that it is appropriate to strike out his claim and defence to counter-claim for want of prosecution.

[14]   Green Land’s application to disbar Mr Mao is accordingly dismissed. The steps that will need to be taken as a result of this conclusion are addressed in the final section of this judgment.

Should Mr Mao be Ordered to Pay Security for Costs?

[15]Rule 5.45 of the Rules relevantly provides:

5.45     Order for security of costs

(1)Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—

(a)that a plaintiff—

(i)is resident out of New Zealand; or

(ii)is a corporation incorporated outside New Zealand; or

(iii)is a subsidiary (within the meaning of section 5 of the Companies Act 1993) of a corporation incorporated outside New Zealand; or

(b)that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff's proceeding.

(2)A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.

[16]   There is no dispute that Green Land’s application for security for costs was brought relatively late in the history of this proceeding. It was not in fact until 13 April 2018 that the application was made, having been precipitated by an affidavit filed by Mr Lau in support of his application for substitution as plaintiff, which was sworn on 21 March 2018. In that affidavit Mr Lau set out in some detail his relationship with Mr Mao and volunteered considerable information about Mr Mao’s financial position. Of relevance to the application subsequently filed by Green Land Mr Lau advised:

5.Mr Mao is a business man who lives in China. While his business interests and investments are spread widely, he is quite traditional in the sense that he does everything himself.

6.I have known Mr Mao since 2005. In 2012, Mr Mao bought 423 (now

387) Ormiston Road, for which he had plans to develop.

7.At the beginning of 2015, I was engaged by Mr Mao as his property manager. He wanted me to manage his property by renting them out and looking for development opportunities. Mr Mao was supposed to pay me about $100,000 per annum as my salary.

8.In March 2015, I was then involved, on Mr Mao's behalf, in the agreement with Green Land which is the subject of this proceeding.

9.Between May and June 2017, Mr Mao had trouble collecting debts owed to him and as such he had significant cash flow problems. As such he was in default of mortgage payments for his New Zealand properties. As such he received property law notices from the mortgagees. I attach as "A" these notices. Some details on this notice has been redacted as they are not relevant to this proceeding.

10.Mr Mao then had to borrow money from his own family to pay for the mortgage defaults. In July 2017, Mr Mao was able to barely get enough money and was able to placate the mortgagee. These lenders

however have also mortgaged Mr Mao's property. I attach as "B" the current title of Mr Mao's property.

11.Then in July 2017, China experienced large-scale floods. I attach as "C" Wikipedia's record of this flood. Mr Mao and his domestic partner had properties in Hubei province, which were badly damaged by the flood. That further put strain on Mr Mao's finances.

12.As such Mr Mao had no more funds and was unable to give instructions to his lawyers, Amicus Law, in the last quarter of 2017. As a result, Amicus Law withdrew representation.

13.Since June 2016, Mr Mao has suffered high blood pressure which required him to go to the hospital several times. His doctor's advice was that he needed to avoid stress and cannot fly. His condition worsened in 2017. Because this case is highly stressful, at the advice of his doctor he has been limiting his involvement in this proceeding.

14.It was never envisaged that the subdivision project under the Green Land agreement would not take this long, nor that it would turn into a dispute of this scale. Mr Mao and I never intended for me to be involved for this long. Furthermore, Mr Mao has not paid me any salary since he engaged me due to these financial issues. Therefore, on 7 September 2017, Mr Mao agreed to give me 33% of the remaining interest of the Green Land agreement. I attach this assignment, titled as Deed of Settlement, as "D".

[17]   As a result and in specific reliance upon Mr Lau’s affidavit, Green Land applied for security for costs against Mr Mao.

[18]   Mr Mao opposes the application for security for costs. While acknowledging the “cashflow” issues raised by Mr Lau in his affidavit, Mr Mao disputes any suggestion that he cannot meet any costs award that may be ordered. In particular  Mr Mao relies upon an affidavit by Ms Mao to the effect that Mr Mao owns three significant properties in New Zealand:

(a)387 Ormiston Road, with a capital value of $7,250,000;

(b)41 Candia Road, Swanson, with a capital value of $2,160,000; and

(c)a further property “owed” by Green Land to Mr Mao under a contract dated 20 December 2015, which Ms Mao estimates would be worth

$550,000-$650,000.

[19]   In addition to relying upon Ms Mao’s affidavit Mr Zhang also relied upon the decision of Kós J in Highgate on Broadway Ltd v Devine where he noted:2

Security for costs is relatively exceptional. Where it is likely to result in the denial of access to justice, it is entirely exceptional.

[20]   In Mr Zhang’s submission Green Land is only raising security for costs as an issue to prevent Mr Mao from pursuing his case or to delay progressing the case. He submits its effect would be punitive, noting that if costs were ordered and Mr Mao was unable to pay them his claim would be stayed, but the case would in any event need to be heard given Green Land’s counter-claim relies on the same contract and circumstances as Mr Mao’s claims.

Discussion and Analysis

[21]   Mr Lau’s affidavit paints a compelling picture of the weakness of Mr Mao’s financial position and that picture is not assuaged by the assertions in Ms Mao’s affidavit. As Mr Illingworth noted Ms Mao provided no information with regard to the amount of equity Mr Mao may have in either the Ormiston Road or Candia Road properties. Instead Hao Yuan Lu, in an affidavit on behalf of Green Land in response to Ms Mao, noted that a wide range of interests have been registered against both properties. First, in relation to Ormiston Road, Mr Lu noted two mortgages registered against the property, with priority amounts of $5,000,000 and $10,000,000 respectively. There is also a caveat purporting to protect the interests of a fourth mortgagee pursuant to term loan agreements. At the same time there is a caveat registered by Dongfeng Lin claiming an interest as purchaser pursuant to an agreement for sale and purchase dated 8 August 2013. Finally, there is a statutory land charge for an unpaid costs order in sum of $59,057.07 owed to the Auckland Council under s 315 of the Resource Management Act 1991.

[22]   The position is similar in relation to Candia Road with a registered mortgage in favour of Industrial and Commercial Bank of China (New Zealand) Limited with a priority amount of $5,928,450 plus interest, and a caveat by Chengjiang Wu claiming

2      Highgate on Broadway Ltd v Devine [2012] NZHC 2288, [2013] NZAR 1017 at [22](e).

an interest as purchaser, pursuant to an agreement for sale and purchase dated 30 September 2015 and a deed of assignment dated 30 October 2015.

[23]   The interests that have been disclosed by Mr Lu are in fact entirely consistent with the description provided by Mr Lau when he described how Mr Mao had been forced to mortgage his properties as a result of his “significant cash flow problems”.3 Given this evidence, the lack of any information regarding the equity held by Mr Mao in the Ormiston Road and Candia Road properties raises serious questions as to whether Mr Mao will be able to meet the costs of the proceeding in the event that he is unsuccessful in his claims. At the same time the property said to be owed by Green Land to Mr Mao also provides no assistance given his ownership of that property is directly at issue in the present proceedings.

[24]   Mr Zhang’s reliance upon Highgate on Broadway and the consequences of ordering security on Mr Mao’s claim also lacks any substance. The essence of Mr Zhang’s submissions is that Mr Mao has sufficient means to be able to meet costs ordered in the proceeding, and not that Mr Mao is impecunious and that his claim will not be able to proceed if security is ordered.

[25]   In those circumstances, there is reason to believe that Mr Mao will be unable to pay the costs of Green Land if Mr Mao is unsuccessful in his proceeding. Given that, the extremely chequered history of this proceeding to date, and the fact Mr Mao resides out of New Zealand it is just in all the circumstances to order security for costs against Mr Mao.

[26]   I am fortified in that view because of the lack of obvious involvement by    Mr Mao in the proceeding in recent months and the corresponding ongoing involvement by Mr Lau. I note in particular that Mr Zhang confirmed he withdrew as counsel in November 2017 because he was not receiving instructions from Mr Mao (apparently because Mr Mao could not afford to pay) and resumed acting on the basis of instructions received from Mr Lau and Ms Mao rather than Mr Mao. Mr Lau’s involvement has led to significant delays so far, first at the outset of proceedings when Mr Lau attempted to participate in the proceedings as a second plaintiff without any

3      See [ ] above.

interest in the subject matter, and again, as noted, between December 2017 and April 2018 when Mr Lau sought to be substituted in Mr Mao’s  place.  In the event that   Mr Mao is not able to meet costs it is unlikely that Mr Lau will be able to do so, given he was declared bankrupt on 10 May 2018.

[27]   Having determined that security is appropriate the question then turns to the amount that should be ordered. Mr Illingworth indicated that the likely costs on a 2B basis for Mr Mao’s claims from this point would amount to $39,000, a figure not disputed by Mr Zhang. In the circumstances that surround the ongoing prosecution of Mr Mao’s claims I consider that it is appropriate for this full amount to be ordered by way of security.

Should the 2018 Proceedings be Struck Out as an Abuse of Process?

[28]   The third application before the Court arose after Mr Mao filed the 2018 proceeding on 14 May 2018, which arises out of the same contract as the 2016 proceedings. Although couched as separate proceedings, at the same time as the 2018 proceedings were filed there was a simultaneous application for consolidation with the 2016 proceedings.

[29]   Mr Illingworth submits the proceedings are substantially identical and should be struck out pursuant to r 15.1(1)(d), as an abuse of process.

[30]   Mr Zhang submitted the proceedings were in fact separate, and in particular the 2018 proceedings raised a separate cause of action, although he did admit that part of the reason the 2018 proceedings were filed was because of the attacks on the 2016 proceeding and the possibility that the 2016 proceedings would be struck out or stayed. In any event Mr Zhang submitted that as consolidation was sought there was in fact no prejudice to Green Land if the proceedings were allowed to remain on foot.

Discussion and Analysis

[31]   It is quite clear that the 2018 proceedings are misconceived and simply purport to add a further layer of confusion over the current proceedings.

[32]   Having looked carefully at the two statements of claim it is difficult to see on what basis Mr Zhang’s submission that the proceedings are substantially different can be made out. The first six pages of each plead a contract between the parties in identical terms, and both appear to allege an ongoing breach of that contract by Green Land which entitles Mr Mao to $3,000 per day from Green Land, until the breach is rectified.

[33]   In such circumstances Mr Zhang’s suggestion that the proceedings are substantively different cannot be sustained, and is indeed belied by Mr Mao’s own application for immediate consolidation.

[34]   The law is clear that duplication of proceedings is an abuse of process. As Master Williams (as he was) observed in Otis Elevator Co Ltd v Linnel Builders Ltd:4

If two actions are commenced the second asking for relief which may have been obtained in the first, the second is prima facie vexatious and may be stayed (Earl Poulett v Viscount Hill [1893] 1 Ch 277 followed in Williams v Hunt [1905] 1 KB 512). Where an action founded on a certain cause of action is in existence, albeit stayed, it is an abuse of process to bring new proceedings founded upon that same cause of action; the second action will be struck out and the proper course would be to apply for the stay to be removed in respect of the first action (Buckland v Palmer [1984] 3 All ER 554).

[35]   Quite clearly any attempt to dodge any perceived likelihood that the 2016 proceeding would be struck out or stayed would make the second proceeding an abuse of process, and even if the 2016 proceedings are not stayed the mere level of duplication also constitutes an abuse. The abuse is not ameliorated by the simultaneous application to consolidate, given there will remain separate statements of claim before the Court, together with separate responses with significant potential for consequent confusion.

[36]   I therefore have no hesitation in striking out the 2018 proceedings. To the extent that there are any matters from the 2018 proceedings that need to be picked up in the 2016 proceedings, the appropriate course will be to apply to amend the claim in the 2016 proceedings.

4      Otis Elevator Co Ltd v Linnel Builders Ltd (1991) 5 PRNZ 72 (HC) at 74, citing Supreme Court Practice (1998, vol 2) at 1416.

Next steps

[37]   As a result of the orders I have made Mr Mao’s proceedings remain on foot subject to the payment of security for costs as directed. To this end Mr Mao will have 14 days after the date of this judgment to pay the security ordered. Whether security is paid or not a judicial conference is to be convened before me for the purpose of directing a timetable for the hearing of the proceedings (if security has been paid) or completing the hearing of the defendant’s cross-claim (in the event that security has not been paid). Obviously in the event that Mr Mao’s claims continue the immediate completion of full discovery by Mr Mao himself swearing an affidavit of documents will be a priority, as will confirmation by Mr Zhang that he is authorised to act on behalf of Mr Mao as the plaintiff, rather than Ms Mao or Mr Lau.

Decision

[38]For the reasons set out above I therefore order:

(a)Green Land’s application to strike out Mr Mao’s claim and defence to counter-claim is dismissed.

(b)Mr Mao is to pay security for costs in the sum of $39,000. In the event that this sum is not paid within 14 days of the date of this judgment Mr Mao’s claim against Green Land will be stayed.

(c)The 2018 proceedings are struck out as an abuse of process.

(d)A judicial conference is to be convened as soon as possible after the expiry of 14 days to determine an appropriate timetable for the completion of the 2016 proceedings.

(e)Costs on the application to strike out the 2016 proceedings for want of prosecution are to lie where they fall.

(f)Green Land is entitled to costs on the application for security for costs on a 2B basis.

(g)Green Land is entitled to costs on the application to strike out the 2018 proceedings on a 2B basis.

Powell J