Mao v Mao - [2020] NZHC 738

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2720

[2020] NZHC 738

BETWEEN
LIANSEN MAO

First Plaintiff

GREENLAND INVESTMENT LIMITED
Second Plaintiff

AND

JIALING MAO

First Defendant

GUOPING NIU

Second Defendant

Hearing: 20 March 2020

Appearances:

GM Illingworth & D Liu for the Plaintiffs In attendance Ms Jiawen Mao

No appearance for the Defendants

Judgment:

9 April 2020

INTERIM JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 9 April 2020 at 3.30pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
D Liu, Heritage Law, Auckland

Copy to:
Liansen Mao Jiawen Mao Jialing Mao Guoping Niu

Mao v Mao [2020] NZHC 738 [9 April 2020]

[1] The plaintiffs apply by way of summary judgment for orders directing the defendants to discharge their mortgages registered over certain land at Ormiston Road, Flat Bush, Auckland, of which the first plaintiff (Mr Mao) is the registered proprietor. The defendants, who are respectively Mr Mao’s daughter and sister-in-law, did not file notices of opposition, but a notice of opposition was filed by Mr Mao.

[2] That unusual state of affairs arose because the proceeding was commenced by the second plaintiff (Green Land) in its own right, and in the purported exercise of an irrevocable power of attorney given to it by Mr Mao, under which Green Land says that it was entitled to issue the proceeding on Mr Mao’s behalf and in his name.

[3] While a notice of opposition and affidavit in opposition were filed by Mr Mao, he did not appear and was not represented by counsel at the hearing. Mr Mao’s daughter, Ms Jiawen Mao, who holds a power of attorney from Mr Mao, sought to appear on his behalf in the proceeding, but a direction was made by Gault J on 3 March 2020 that, in order to oppose, Mr Mao would need to appear at the hearing in person or instruct a lawyer on his behalf.1 In the event, Mr Mao did neither, and I declined to allow Ms Jiawen Mao to make submissions on his behalf at the hearing.

Background

[4] Green Land was formed in 2012 for the purpose of acquiring and subdividing land in Ormiston Road, Flat Bush, formerly known as numbers 411, 425, 425A and 431 Ormiston Road (the Project). Mr Mao was and is the registered proprietor of the adjoining land at 423 Ormiston Road, Flat Bush (now known as 387 Ormiston Road).

[5] Green Land successfully completed Part 1 of the Project, comprising 100 lots. Stage 2 of the Project was to comprise an additional 37 lots. In order to complete Stage 2 of the Project, Green Land needed to acquire an area of land owned by Mr Mao, which formed the driveway of 387 Ormiston Road (“the driveway land”). The driveway land would have to be vested in Auckland Council as road, to service the various lots that were being subdivided from Stage 2 of…

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 738
Decision Date: 9 April 2020

CaseChat Overview and Summary

In the High Court of New Zealand, in the Auckland Registry, the plaintiffs, Liansen Mao and Greenland Investment Limited, sought a summary judgment against the defendants, Jialing Mao and Guoping Niu, to direct them to discharge their mortgages on certain land in Flat Bush, Auckland. The defendants did not file notices of opposition, but the first plaintiff, Mr Mao, did file a notice of opposition. The defendants did not appear at the hearing, and the first plaintiff, Mr Mao, did not attend or send counsel to represent him. The court considered several issues before granting the plaintiffs' request for summary judgment. The court first considered whether there were unpaid monies or outstanding obligations under the defendants' mortgages, and found that there were none. The court then considered whether the power of attorney given to Jiawen Mao by Mr Mao permitted her to sub-delegate the powers to Greenland Investment Limited, and found that it did. The court then considered whether the power of attorney given to Greenland Investment Limited had been cancelled, and found that it had not. The court also considered the scope of the power of attorney and whether it permitted Greenland Investment Limited to bring the proceeding against the defendants in Mr Mao's name, and found that it did. The court granted the plaintiffs' request for summary judgment and ordered the defendants to discharge their mortgages within 10 working days of the date of the judgment. If the defendants failed or refused to do so, the court would either make the orders sought by the plaintiffs or make an order under section 111 of the Property Law Act. The court also dismissed several applications made by Ms Jiawen Mao, including applications for the issue of witness summonses and for her to be added as a party to the proceeding.

Orders