Mills v Feng - [2024] NZHC 2354

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-212

[2024] NZHC 2354

BETWEEN
DAVID LAWRENCE MILLS

and
FIONNA EILEEN MILLS as Trustees of THE MILLS FAMILY TRUST
Judgment Creditors

AND

WEIQIANG FENG

also known as BRIAN FENG Judgment Debtor

Hearing: 13 August 2024

Appearances:

Katerina Wendt for the Judgment Creditors Trent Bowler for the Judgment Debtor

Judgment:

22 August 2024

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application for a stay]

This judgment was delivered by me on 22 August 2024 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Powle & Hodson (Donna Powle), Newmarket, Auckland, for the Judgment Creditors Neilsons Lawyers (Trent Bowler), Onehunga, Auckland, for the Judgment Debtor

Copy for:
Katerina Wendt, Richmond Chambers, Auckland, for the Judgment Creditors

MILLS v FENG [2024] NZHC 2354 [22 August 2024]

Introduction

[1] Mr Weiqiang (Brian) Feng (Mr Feng) applies for a stay of execution of the Court’s judgment dated 26 September 20231 (the Judgment) which determined two applications:

(a)in proceeding CIV-2023-404-212, decision declining Mr Feng’s application to set aside the judgment creditor’s bankruptcy notice; and

(b)in proceeding CIV-2023-404-972, decision striking out of the judgment debtor’s claim against the judgment creditors.

Background

[2] The judgment creditor, David Lawrence Mills and Fiona Eileen Mills (the Mills) as trustees of the Mills Family Trust (the Mills Trust) initially agreed to sell a property situated at 22 Manapau Street, Meadowbank, Auckland (the Property) to Mr Feng, who then nominated Mr Wang as purchaser under the sale and purchase agreement. Mr Wang subsequently failed to settle, and the Mills Trust was obliged to resell the property at a loss, which it sought to recover by way of summary judgment.

[3] On 7 December 2022, Lang J granted summary judgment jointly and severally against Mr Feng and Mr Wang to the value of $756,597.31. Mr Feng subsequently applied for a stay of execution of Lang J’s judgment pending the Mills Trust’s enforcement of their judgment against Mr Wang, and the outcome of Mr Feng’s 972 proceeding against the real estate agent, Mr Wang and the Mills Trust. On 22 May 2023, Campbell J refused to grant such a stay.

[4] In accordance with the Court’s order of 24 April 2023 allowing substituted service of the bankruptcy notice dated 3 February 2023 (the bankruptcy notice), the Mills Trust served Mr Feng on 2 May 2023. On 2 May 2023, Mr Feng filed an application to set aside the bankruptcy notice.

[5]On 19 April 2023, Mr Feng filed the 972 proceeding.

1 Mills v Feng [2023] NZHC 2674.

[6] On 2 August 2023, the Mills Trust filed an application to strike out the parts of the 972 pleading which related to them. Mr Feng has subsequently filed an amended statement of claim dated 6 August 2023, in which the Mills Trust is still included.

[7] On 26 September 2023, the Court dismissed…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Mills v Feng

Details

AGLC: Mills v Feng [2024] NZHC 2354
Case: [2024] NZHC 2354
Decision Date: 22 August 2024

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Mills v Feng was heard on an application by the judgment debtor, Mr Weiqiang (Brian) Feng, for a stay of execution of a previous judgment. The judgment creditors, David Lawrence Mills and Fiona Eileen Mills as trustees of the Mills Family Trust, sought to enforce their judgment against Mr Feng, who had defaulted on a property sale. The legal issues in this case centered on the appropriate balance between the judgment creditor's right to enforce their judgment and the judgment debtor's right to appeal the decision. The court considered factors such as the novelty and importance of the questions involved, the effect on third parties, and the overall balance of convenience. Mr Feng argued that a stay was necessary to prevent him from being adjudicated bankrupt while his appeal was pending, but the Mills Trust countered that the delay would cause significant prejudice to them. The court found that the balance of convenience favored dismissing the application for a stay, as there was no evidence of Mr Feng's solvency, and the Mills Trust had a charging order over his property, although the equity in this property was not evident. The court concluded that the prejudice to the Mills Trust of further delay outweighed any potential prejudice to Mr Feng.

The court dismissed Mr Feng's application for a stay of execution of the judgment and reserved costs. The decision highlighted the need for a balanced approach in determining applications for a stay of execution, considering all relevant factors specific to each case.

Orders