Mills v Feng

[2022] NZHC 3278

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1909

[2022] NZHC 3278

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:

7 December 2022

Appearances:

K Wendt for Plaintiffs

A Ho for First Defendant
No appearance for or by Second Defendant

Judgment:

7 December 2022

(ORAL) JUDGMENT OF LANG J

[on application for summary judgment]

Solicitors; Counsel:

K Wendt, Auckland

Crimson Legal, Auckland

MILLS v FENG [2022] NZHC 3278 [7 December 2022]

[1]     In this proceeding the plaintiffs seek to recover the shortfall incurred on a re- sale of a property that they owned. They originally sold it to the first defendant, who then nominated the second defendant as the purchaser under the agreement for sale and purchase. This fact did not absolve the first defendants from liability under the agreement. The second defendant subsequently failed to settle the purchase of the property and the plaintiffs were obliged to re-sell it. They did so but at a loss.

[2]The plaintiffs seek the following:

a)Damages for the shortfall on the re-sale of the property - $613.070.40

b)An order that the defendants are jointly and severally liable to the plaintiffs for contractual interest - $126,004.20.

c)An order that the defendants are jointly and severally liable to pay interest to the plaintiffs under s 10 of the Interest on Money Claims Act 2016 on the balance of the sale price ($530,000) calculated from 14 September 2022 to the date of judgment.

d)The plaintiffs also seek costs on a category 2B basis together with disbursements as fixed by the Registrar.

[3]     The proceeding has been served on both defendants and neither defendant has taken any steps to defend the claim. Given the fact that the defendants have taken no steps I now enter summary judgment against them jointly and severally for the amounts sought in the statement of claim.

[4]     I record that counsel have advised me that they understand the second defendant now apparently disputes the fact that he was served with the proceeding. He claims he was overseas on the date when the proceeding was allegedly served on him in Auckland. However, the affidavit of service sworn by a process server contains the following statement:

2. At 4.15pm on 23 October 2022, I personally served the Documents on the second defendant, Kai Wang, at 20 Riddell Road, Glendowie, Auckland. Mr Kai acknowledged his identity and accepted the documents. The Documents were served under cover of a letter from Ms Wendt, which is annexed and marked “A”.

[5]     I do not consider is possible in the present context to go beyond the statement contained in the affidavit of service. If Mr Wang wishes to dispute the fact that he was served he would need to apply to set aside the judgment. In that event the plaintiff would need to provide further evidence from the process server.

[6]     At the end of the hearing Mr Ho advised me that the first defendant does not intend to continue with his application for leave to file a cross-claim against the second defendant. That claim is accordingly dismissed. This leaves the first defendant free to commence a fresh claim against the second defendant in a new proceeding.

Lang J