Mao v Mao - [2020] NZHC 1292

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2720

[2020] NZHC 1292

BETWEEN
LIANSEN MAO

First Plaintiff

GREEN LAND INVESTMENT LIMITED
Second Plaintiff

AND

JIALING MAO

First Defendant

GUOPING NIU

Second Defendant

Hearing: 9 June 2020

Appearances:

GM Illingworth QC & D Liu for Green Land Investment Limited No appearance for Defendants or First Plaintiff

Judgment:

10 June 2020

JUDGMENT NO.3 OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 10 June 2020 at 4.45pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
D Liu, Heritage Law, Auckland

Copy to:
Liansen Mao Jialing Mao Guoping Niu

Mao v Mao (No.3) [2020] NZHC 1292 [10 June 2020]

[1] On 9 April 2020 I made certain orders for specific performance on an application filed by the second plaintiff (Green Land) on its own behalf, and as attorney for the first plaintiff, for summary judgment.1 I ordered the defendants to discharge certain mortgages they had registered on the title to a property at 387 Ormiston Road, Flat Bush, Auckland (the property).The first plaintiff (Mr Mao), who is the registered proprietor of the property, opposed the summary judgment application.

[2] I ordered the defendants to discharge their respective mortgages within 10 working days of the date of my judgment.

[3] The defendants and Mr Mao applied to set aside the judgment. They produced certain further evidence, and Green Land provided an affidavit in opposition which appeared to show that its case for summary judgment was weaker than that which had been advanced at the summary judgment hearing. On 2 June 2020, I made an order setting aside the summary judgment. My reasons for that order were given on 3 June 2020.2 For convenience, I will refer to the summary judgment given on 9 April 2020 as “the Judgment”, and the setting aside judgment, and the subsequent reasons for it, as “Judgment No.2”.

[4] On 4 June 2020, Green Land filed an interlocutory application (the application) for orders directing Westpac Banking Corporation, ASB Bank, Bank of New Zealand and ANZ Bank New Zealand Limited (collectively, “the banks”) to disclose details of certain bank cheques, copies of which Mr Mao had referred to in his affidavit in support of the application to set aside the Judgment.

[5] On 5 June 2020 I gave directions for the filing of any documents in opposition, and directed that the application would be heard on 9 June 2020 at 4pm. The defendants and Mr Mao filed a document which I will treat as a notice of opposition, and each filed written submissions, within the time directed by the Court. The defendants and Mr Mao were advised of their entitlement to participate in the hearing by use of the Virtual Meeting Room facility, but none of them elected to do so. Each

1 Mao & Green Land Investment Ltd v Mao [2020] NZHC 738.
2 Mao & Green Land Investment Ltd v Mao [2020]…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2020] NZHC 1292
Decision Date: 10 June 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Associate Judge Smith presided over an application by Green Land Investment Limited, acting on behalf of Liansen Mao, seeking orders for non-party discovery against several banks. The application aimed to obtain details of bank cheques issued by the banks, which were relied upon by the defendants to verify their alleged contributions to their mortgages. The defendants and Mr Mao opposed the application, arguing that the bank account details should not be disclosed as the account owners were third parties unrelated to the proceeding. Associate Judge Smith analyzed the legal position under s 75 of the Evidence Act 2006 and r 8.21 of the High Court Rules 2016, concluding that the information sought from the banks was relevant and necessary for the proceeding. The Judge further found that the documents sought may make a real difference and were not merely marginal. The Judge accepted that non-party discovery could be sought at any point after a proceeding had commenced, particularly when the issue on which the discovery was sought went to the very heart of the proceeding. The Judge also rejected the defendants' concerns that their lenders might face harassment from Green Land if their details were disclosed. As a result, Associate Judge Smith made orders in terms of the draft submitted by Mr Illingworth, requiring the banks to provide the information sought.

The final orders made by Associate Judge Smith required the banks to disclose the account name and number of the bank account from which the funds for the bank cheques were drawn, and the full name and address of the owner of the source account. Leave was reserved to Green Land to file and serve a memorandum seeking costs on the application, within 15 working days after the non-party discovery had been provided by all of the banks. The defendants and Mr Mao could file and serve a memorandum in reply on costs within 10 working days after their receipt of Green Land's costs memorandum.

Orders