Mo v Tamaki Homes Limited

[2019] NZHC 2701

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2619

[2019] NZHC 2701

BETWEEN

QINGHUA MO and YU HUANG

Plaintiffs

AND

TAMAKI HOMES LIMITED

First Defendant

ZHE YANG and JACKSON ING WEI LAW

Second Defendants

On the papers:	at Auckland
Judgment:	23 October 2019

JUDGMENT OF POWELL J

[Pre-judgment Charging Order]

This judgment was delivered by me on 23 October 2019 at 12 noon pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:      DX Law Ltd Auckland

Croftfield Law Limited, Glenfield

Southern Cross Chambers, High Street, Auckland Iain Hutcheson, Takapuna

MO & Anor v TAMAKI HOMES LIMITED [2019] NZHC 2701 [23 October 2019]

[1]    The plaintiffs, Qinghua Mo and Yu Huang, have applied for pre-judgment charging orders over a property located at 12 Ropata Avenue, Point England, Auckland, more particularly known as all the land described in CT Identifier NZ853/45 (North Auckland Registry) (“the Ropata Property”), which is registered in the name of the first defendant.

[2]    The application relies on r 17.40 of the High Court Rules 2016 which materially provides:

17.40 Effect of charging order

(1) A charging order charges the estate, right, title, or interest of the liable party in the property described in the order with payment of the amount for which the entitled party may obtain or has obtained judgment.

…

[3]And r 17.41 which provides:

Leave to issue a charging order before judgment may be granted only on proof that the liable party, with intent to defeat either his or her creditors or the entitled party or both,—

(a)    is removing, concealing, or disposing of the liable party’s property; or

[4]    The application was originally brought in March 2019, and was considered by Lang J. In a minute dated 6 March 2019 His Honour stated:1

The plaintiffs have a clearly arguable case, but I do not consider that the material filed in support of the application indicates that the defendants are acting in manner consistent with the concealing or disposing of property with intent to defeat their creditors.

[5]    His Honour nonetheless reserved leave for the plaintiffs to make a further application in the event that further evidence became available.

[6]    The application has now been resumed. In the meantime, further information has come to light as the substantive proceedings have developed, with evidence now available from both the plaintiffs and the defendants. The plaintiffs’ arguable case, as noted by Lang J, has now been further strengthened by reports obtained by both the

1 Minute of Lang J CIV-2018-404-2619, 6 March 2019, at [2].

plaintiffs and the defendants confirming significant contributions by the plaintiffs to the defendants’ development of the Ropata Property, over and above the specific contribution to Unit 1 over which they have a caveatable interest.

[7]    In addition, the plaintiffs have provided further detail as to how their claims in respect of other properties have been dealt with and that provides a credible basis for suggesting that the current steps being taken by the defendants to sell various of the units at the Ropata Property are at least partially with the intention of defeating the interests of the plaintiffs.

[8]In the circumstances I make the charging order as sought by the plaintiffs.

[9]    I note that the plaintiffs have explicitly confirmed that they are not seeking to stop the sale of the various units proceeding but have sought the charging orders to prevent the proceeds of sale from being dissipated. As a result, leave is reserved for either party to apply to vary the orders as necessary so as to facilitate the sale of the units while preserving the proceeds of sale in the interim. Such leave is in addition to the power in r 17.44 of the High Court Rules to apply to set aside or vary the charging orders upon the application of the defendants.

Powell J