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 32.2 and 32.5 provide for the circumstances in which the Court may grant a freezing order. Rule 32.3 allows the Court to make an order ancillary to a freezing order if it considers it just, including to obtain information about assets.

[11]              The general principles are well settled. For freezing orders to issue, there must be:1

(a)a good arguable case on the applicant’s substantive claim;

(b)assets of the respondents to which the orders can apply;

(c)a real risk the respondents will dissipate or dispose of those assets to defeat any judgment.

[12]              Finally, it must be in the interests of overall justice that the orders be granted. The Court weighs the interests of justice so as to strike a balance between the need to protect the applicant, and to avoid undue prejudice or hardship to the respondents or any third parties.

Analysis

Good arguable case

[13]              A good arguable case requires that the applicant’s allegations are tenable and are supported by sufficient evidence.2

[14]              I accept that the applicant has a good arguable case because it has proceeded to a substantive trial in which the applicant pursues a claim that the first respondent made false representations over a significant period in relation to the status of the building consent application that the first respondent had submitted for the applicant. The applicant asserts that the first respondent admitted at trial that he had made false representations.

1      Bank of New Zealand v Hawkins [1989] 1 PRNZ 451, subsequently approved by the Court of Appeal in Shaw v Narain [1992] 2 NZLR 544.

2      Murren v Schaeffer (2018) NZCA 318 at (15).

Assets to which the order can apply

[15]              The freezing orders are sought against the Property and any bank account held in the names of the first and/or second respondents. These are sufficiently identified.

[16]              Given the background circumstances described above, I accept there is a good arguable case that the Property may have been disposed with the intent of prejudicing the applicant’s actions to enforce any judgment that might be obtained in this proceeding, in breach of ss 347 and 348 of the Property Law Act 2007. I accept that the timing of the transfer, while a judgment is pending, raises a suspicion and gives rise to a reasonable inference that the purpose of the transferor might have been to defeat creditor interests. The applicant may have grounds to set aside the disposition under s 348 of the Property Law Act. It is sufficient in terms of the present application if the applicant has a real case to be investigated.3

Risk of dissipation

[17]              As already addressed in the facts outlined above, there is a real risk that the first respondent has undertaken the transfer of the Property to defeat creditors, which raises concerns that he is taking steps to dispose of other assets to defeat any judgment. The test is “not unduly exacting” and requires circumstances from which a danger of default can properly be inferred.4

Balance of convenience

[18]              The orders permit the respondents to deal with assets in certain circumstances, including for their living expenses and legal costs. If there are any other dealings with the Property or significant transfers in the bank accounts, the freezing orders will ensure that the consent of the applicant is obtained, or permission of the Court is sought first.

3      Primary Services New Zealand Ltd v Colombo Projects Ltd [2020] NZHC 101 at [16]–[18] and [30].

4      Raukura Moana Fisheries Ltd v The Ship “Irina Zharkikh” (2001) 2 NZLR 801 (HC) at (122); and Murren v Schaeffer, above n 2, at (16).

[19]              The ancillary orders are intended to obtain relevant information about the assets and liabilities of the first respondent so that the orders can be tailored if appropriate. I accept that granting these orders is appropriate considering the overall balance of convenience and the interests of justice.

Result

[20]              Accordingly, for those reasons the orders are granted in accordance with the draft order filed.

[21]              The return date for call in the Duty Judge list at para [7] of the order is 10 am on Thursday 18 September 2025. The period for the respondents to apply in para [8] is two working days.

O’Gorman J