Registrar-General of Land v Zhang

[2019] NZHC 1070

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-002600

[2019] NZHC 1070

BETWEEN

THE REGISTRAR-GENERAL OF LAND

Plaintiff

AND

HUI ZHANG

Defendant

Hearing:	(On the papers)
Counsel:	P Courtney and K Gaskell for the Plaintiff No appearance for the Defendant
Judgment:	15 May 2019

JUDGMENT OF MOORE J

This judgment was delivered by me on 15 May 2019 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

THE REGISTRAR-GENERAL OF LAND v ZHANG [2019] NZHC 1070 [15 May 2019]

Introduction

[1]    The Registrar-General of Land (“the Registrar-General”) seeks to seal judgment by default. The defendant, Mr Hui Zhang, has not filed a statement of defence within the prescribed time.

[2]    The Registrar-General seeks judgment by default on the grounds that the amount claimed is the liquidated sum and the defendant has defaulted in filing a statement of defence.

Background

[3]    These proceedings were commenced on 22 November 2018. They seek payment of the sum of $668,188.78 being the amount paid out of the Crown bank account, on the plaintiff’s behalf, to Wai Kar Wong in compensation for losses arising out of the defendant’s fraud which caused Mr Wong’s title as a registered proprietor to be transferred to a third party.

[4]    Mr Wong was the registered proprietor of a residential property in Highland Park, Auckland (“the property”). At all material times he was living in Hong Kong. A tenant in the property, Ms Li entered into a relationship with the defendant. In the course of that relationship she and the defendant hatched a plan to defraud Mr Wong by forging documents purporting to evince the sale of the property from Mr Wong to the defendant. The defendant then obtained a loan from the Westpac Bank secured by way of registered mortgage over the property.

[5]    It would appear that the next event of relevance occurred when the defendant was charged in respect of unrelated offending and the Commissioner of Police obtained a restraining order over the property under the Criminal Proceeds (Recovery) Act 2009. The property was then sold to a third party by the Westpac Bank exercising its mortgagee power of sale. These circumstances came to the attention of Mr Wong who, unsurprisingly, made a complaint to the New Zealand Police.

[6]    Later, the defendant admitted that he had no interest in the proceeds of sale of the property.

[7]    Mr Wong then made a claim for compensation regarding deprivation of land against the plaintiff.

[8]    Mr Zhang was charged with receiving the property with knowledge that the title had been obtained by an imprisonable offence.1 He pleaded guilty.

[9]    The plaintiff paid Mr Wong $668,188.78 in settlement of his claim and now seeks reimbursement of that sum from the defendant.

[10]   The proceedings have been served on the defendant in prison. This occurred on 19 December 2018. The notice of proceeding required that the defendant file a statement of defence within 25 days after the date of service. This period expired on 15 February 2019.

[11]   There is no record of any statement of defence being filed. Neither has the Registrar-General been served.

This claim

[12]   The Registrar-General submits that these proceedings are covered by r 15.7 of the High Court Rules because the relief claimed is payment of a liquidated demand in money. Furthermore, s 175(1)(b) of the Land Transfer Act 1952 (“the LTA”) provides that where any sum of money is paid out of the Crown bank account as compensation for any loss occasioned by fraud on the part of any person causing or procuring themselves to be registered as a proprietor, the amount of that compensation, together with all costs incurred in testing or defending any claim, shall be deemed a debt due to the Crown from the person legally responsible and may be recovered at action in law in the name of the Registrar-General. In this case, the amount claimed is plain and the basis on which it is claimed is apparent. Quantum is in issue.

[13]   Furthermore, given the express provisions of r 15.7 I am satisfied it is not necessary for the plaintiff to proceed by way of formal proof under r 15.9 which, on its face, relates to “other claims”.

1      Crimes Act 1961, ss 246 and 247.

[14]   I am thus satisfied that the proceeding falls within r 15.7 and that the orders sought may be made.

Result

[15]I direct the sealing of this judgment in terms of r 15.7(1) in the sum of

$687,836.05 (being $668,188.78 plus $19,647.27 being costs  incurred  in  testing Mr Wong’s compensation claim) together with costs and disbursements in terms of paragraph [13] of counsel’s memorandum dated 10 May 2019.

Moore J

Solicitors:

Crown Law, Wellington

Copy to:

The Defendant