Mills v Feng

[2023] NZHC 1199

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2022-404-1909

[2023] NZHC 1199

BETWEEN

DAVID LAWRENCE MILLS and FIONNA

EILEEN MILLS as trustees of THE MILLS FAMILY TRUST
Plaintiffs

AND

WEIQIANG FENG (also known as BRIAN FENG)

First Defendant

KAI WANG (also known as TONY WANG) Second defendant

Hearing:

11 May 2023

Appearances:

K Wendt for the plaintiffs

The first defendant in person, with Augustine Lau as McKenzie Friend and George Chang as interpreter

Judgment:

22 May 2023

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 22 May 2023 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

MILLS and MILLS v FENG and ENG [2023] NZHC 1199 [22 May 2023]

[1]                  On 7 December 2022, Lang J granted the plaintiffs’ application for summary judgment against the first and second defendants. Judgment of just over $750,000 was entered, for which the first and second defendants are jointly and severally liable.

[2]                  The first defendant, Mr Feng, applies for a stay of execution of that judgment, pending the plaintiffs’ enforcement of the judgment against the second defendant, Mr Wang, and the outcome of Mr Feng’s own proceeding against Mr Wang. The plaintiffs oppose Mr Feng’s application.

Background

[3]                  The judgment arose  from  the  defendants’  failure  to  settle  the  purchase  of a property owned by the plaintiffs. The plaintiffs entered into an agreement to sell the property to Mr Feng in October 2021. In April 2022, Mr Feng nominated Mr Wang as purchaser. Mr Feng and  Mr Wang  executed  a  deed  of  nomination  in  which Mr Wang gave an indemnity to Mr Feng in respect of any liability Mr Feng might have under the sale and purchase agreement.

[4]                  The nomination of Mr Wang as purchaser did not release Mr Feng from liability under the sale and purchase agreement. Neither Mr Feng nor Mr Wang settled the purchase. The plaintiffs cancelled the agreement and re-sold their property. The resale was at a price lower than the price that Mr Feng had agreed to pay. The plaintiffs then sued Mr Feng and Mr Wang for their loss on resale and for interests and costs.

[5]                  Mr Feng was represented by counsel before Lang J but did not oppose the summary judgment application. Mr Wang took no steps. In those circumstances, Lang J had no difficulty in granting summary judgment against both defendants.

[6]                  Mr Feng then brought his own proceeding against Mr Wang, relying on the indemnity that Mr Wang had given Mr Feng in the deed of nomination. Mr Feng applied for summary judgment against Mr Wang. Mr Feng’s summary judgment application is to be heard on 6 June 2023.  Judgment in Mr Feng’s favour is likely,   as Mr Wang has yet to take any steps in that proceeding.

[7]                  Meanwhile, the plaintiffs have been taking steps to execute the judgment against both Mr Feng and Mr Wang. At their request, the court issued…