Stalix Property Limited v Wu - [2022] NZHC 3163

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000241

[2022] NZHC 3163

BETWEEN
STALIX PROPERTY LIMITED and

STRESS FREE CHAIRS, DINING AND LOUNGE LIMITED
Plaintiffs

AND

YI HENG WU

First Defendant

AND

XI CHEN

Second Defendant

AND

ZHONG XIU FAN

Third Defendant

AND

FANG CHUN WU

Fourth Defendant

Hearing: On the papers

Counsel:

G K Riach for Plaintiffs

Yi Heng Wu (Henry Wu) self-represented for all Defendants

Judgment:

29 November 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 29 November 2022 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

STALIX PROPERTY LTD v WU [2022] NZHC 3163 [29 November 2022]

[1] The plaintiffs, Stalix Property Ltd and Stress Free Chairs, Dining and Lounge Ltd, apply on a without notice basis for an order pursuant to r 6.8 High Court Rules 2016 that service on the second and fourth defendants of an Order for Possession made by this Court and sealed on 5 October 2022 be effected by:

(a)handing a copy of the Order to any adult person answering the door at 15 Blarney Place, Casebrook or, if nobody answers the door, by affixing a copy of the Order to the front door of that property;

(b)sending an electronic copy of the Order to the email address for service of the first and third defendants; and

(c)treating the Order as served on completion of both of the above modes of service.

[2] The background to the application is as follows. The plaintiffs filed proceedings against the defendants for possession of the Blarney Place property. They obtained an order for possession of the property pursuant to a judgment of Associate Judge Lester dated 5 August 2022. In that judgment the Judge noted there had been a lengthy history of proceedings leading to the property being sold to the plaintiffs pursuant to an order for sale made by the High Court, but the plaintiffs were not involved in that prior litigation and were arms-length purchasers of the property for value. The judgment notes that the first defendant, Mr Wu, appeared in person to oppose the plaintiffs’ application and the other defendants were present in Court during the hearing.

[3] Mr Wu subsequently filed an appeal from Associate Judge Lester’s judgment. He also applied for a stay, which was heard and dismissed by Associate Judge Lester on 12 August 2022. On 15 August 2022, the third defendant, Ms Fan, also applied for a stay of the judgment which was declined by Associate Judge Lester on 19 August 2022. Mr Wu also applied to the Court of Appeal for a stay, but the Court of Appeal dismissed that application. Mr Wu has applied to the Court of Appeal for recall of the

dismissal of his stay application and the Court of Appeal dismissed that application noting:1

In those circumstances, and having regard to the history of the proceedings summarised in our judgment, we are…

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.

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Details

Case: [2022] NZHC 3163
Decision Date: 29 November 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiffs, Stalix Property Limited and Stress Free Chairs, Dining and Lounge Limited, sought an order for the service of an Order for Possession on the second and fourth defendants. The defendants were Yi Heng Wu, Xi Chen, Zhong Xiu Fan, and Fang Chun Wu. The plaintiffs sought substituted service due to difficulties in effecting personal service. The case was heard by Associate Judge Paulsen, who examined the application based on the affidavit of a private investigator, Mr Verdi van Beek. Mr van Beek attempted to serve the Order for Possession on the second and fourth defendants at the Blarney Place property, but Mr Wu, the first defendant, refused to allow service.

The legal issues before the court were whether reasonable efforts had been made to serve the Order for Possession and if substituted service could be ordered under Rule 6.8 of the High Court Rules 2016. The court found that reasonable efforts had been made to serve the Order for Possession, and further attempts at personal service were unlikely to succeed. Moreover, the proposed method of substituted service was likely to bring the Order for Possession to the attention of the second and fourth defendants.

Associate Judge Paulsen granted the application for substituted service, allowing service by affixing a copy of the Order for Possession to the front door of the property and sending an electronic copy to the email address for service of the first and third defendants. The Order for Possession was to be treated as served upon completion of these steps. The court declined to make an order for indemnity costs against Mr Wu at that time, giving him an opportunity to be heard on the matter if the plaintiffs pursued the application further.

The final orders included dispensing with personal service of the Order for Possession on the second and fourth defendants and allowing substituted service in the specified manner. The court also outlined the procedure for the plaintiffs to pursue the costs application against Mr Wu.

Orders