Song v Fan - [2025] NZHC 2664

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-666

[2025] NZHC 2664

BETWEEN
JIANG SONG

Applicant

AND

JIN PENG FAN

First Respondent

ZHENZHEN LU

Second Respondent

Hearing: On the papers

Counsel:

K H Morrison and K L Chiu for Applicant

Judgment:

12 September 2025

JUDGMENT OF O’GORMAN J

[Without notice application for freezing and ancillary orders]

This judgment was delivered by me on 12 September 2025 at 3 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors:
Meredith Connell, Auckland

SONG v FAN [2025] NZHC 2664 [12 September 2025]

Overview

[1] This is a without notice application by Jian Song seeking a pre-judgment freezing order.

[2]The orders are sought in respect of:

(a)the property at 32 Calypso Way, Unsworth Heights, Auckland 0632, contained in Record of Title NA106A/874 (Property), previously held jointly by the first and second respondents and since 28 August 2025 held solely by the second respondent; and

(b)bank accounts held in the names of the first and/or second respondents.

[3] Based on the first respondent transferring the Property on 28 August 2025 into the sole name of the second respondent while a substantive judgment in this proceeding is pending, the applicant believes that the first respondent is attempting to render himself “judgment-proof”. The application is made on an urgent and without notice basis to address those concerns.

Factual background

[4] Mr Song is a property developer and Mr Fan is an architectural designer who was contracted to perform architectural design work for Mr Song.

[5] Mr Song owned a property in East Coast Road, Pinehill which contained a single dwelling. In around August 2019, Mr Song agreed with a friend to develop the East Coast Road property into two dwellings for their shared benefit. The friend knew Mr Fan through their children’s school. Based on representations about his qualifications and experience, Mr Fan was engaged to work on the development. His engagement was confirmed by early September 2019, and a 20 per cent deposit paid in October 2019.

[6]In the substantive claim, Mr Song alleges that Mr Fan:

(a)failed to complete the contracted services within a reasonable time;

(b)misrepresented his qualifications in inducing Mr Song to engage his services;

(c)lied about the submission of the building consent application in April 2021, and made numerous subsequent lies about the status of this application and the impending consent; and

(d)only submitted this application in November 2022.

[7] On 16 November 2022, Mr Song went directly to the Council and found out the application had only been received by the Council on 9 November 2022. Following this, Mr Song terminated Mr Fan’s services.

[8] On 14 April 2023, these proceedings were commenced, seeking damages for financial loss arising from delay and having to submit amended designs.

[9] The substantive trial took place between 28 April 2025 and 6 May 2025 before Walker J. Judgment was reserved and is still pending.

Legal principles

[10] Rules…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Song v Fan

Details

AGLC: Song v Fan [2025] NZHC 2664
Case: [2025] NZHC 2664
Decision Date: 12 September 2025

CaseChat Overview and Summary

This case involves a without notice application by Jian Song seeking a pre-judgment freezing order against Jin Peng Fan and Zhenzhen Lu. The orders are sought in respect of a property located at 32 Calypso Way, Unsworth Heights, Auckland, and bank accounts held by the respondents. Jian Song, a property developer, alleges that Jin Peng Fan, an architectural designer, made false representations regarding the status of a building consent application, leading to delays and additional costs. Jian Song suspects that Jin Peng Fan is attempting to render himself "judgment-proof" by transferring the property to Zhenzhen Lu's sole name while the substantive judgment in this proceeding is pending.

The legal issues in this case revolve around the criteria for granting a freezing order under the High Court Rules. The court must consider whether there is a good arguable case on the applicant's substantive claim, whether the assets can be subjected to the order, whether there is a real risk that the respondents will dissipate or dispose of those assets, and whether it is in the interests of justice to grant the order. The court must also balance the need to protect the applicant against any undue prejudice or hardship to the respondents or third parties.

The court found that Jian Song has a good arguable case, as the allegations are tenable and supported by sufficient evidence. The property and bank accounts of the respondents are sufficiently identified and there is a real risk that Jin Peng Fan has undertaken the transfer of the property to defeat creditors, raising concerns about the disposition of other assets. The court also considered the balance of convenience, noting that the orders permit the respondents to deal with assets in certain circumstances and that the freezing orders would ensure that the applicant is consulted or the court's permission is sought for significant dealings with the property or transfers in bank accounts.

The court granted the orders in accordance with the draft order filed, with a return date for call in the Duty Judge list on 18 September 2025, and a period for the respondents to apply of two working days. The orders are intended to protect Jian Song's interests pending the substantive judgment in this proceeding.

Orders