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
PlaintiffsAND
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…
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- AGLC
- Mills v Feng [2023] NZHC 1199
- Case
- [2023] NZHC 1199
- Decision Date
CaseChat Overview and Summary
The court considered the applicable principles governing applications for a stay of enforcement under Rule 17.29 of the High Court Rules 2016. The court noted that the starting point was that the successful party was entitled to the fruits of its judgment, and the onus was on the applicant seeking a stay of enforcement to persuade the court to exercise its discretion. The court also considered whether there was a real and substantial risk of a miscarriage of justice if the judgment were enforced against Mr Feng. The court found that Mr Feng had not satisfied this threshold. The court considered the evidence of Mr Wang's financial situation and concluded that it was unlikely that he had assets sufficient to satisfy the judgment. The court also considered Mr Feng's recent transfer of three properties to a company and found that this suggested that he had assets available to him to satisfy the judgment. The court found that the separate proceeding that Mr Feng had commenced against the plaintiffs did not assist him on the stay application as the claim appeared exceedingly weak. The court therefore dismissed Mr Feng's application for a stay.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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