Stalix Property Limited v Wu - [2022] NZHC 2067

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-241

[2022] NZHC 2067

IN THE MATTER of an application for recovery of land

BETWEEN

STALIX PROPERTY LIMITED and STRESS FREE CHAIRS, DINING AND LOUNGE LIMITED

Plaintiffs

AND

YI HENG WU (also known as Henry Wu) First Defendant

XI CHEN
Second Defendant

ZHONG XIU FAN
Third Defendant

FANG CHUN WU

Fourth Defendant

Hearing: 12 August 2022 (by Telephone)

Appearances:

G K Riach for Plaintiffs Mr Wu in person

Judgment:

19 August 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(stay application by third defendant)

STALIX PROPERTY LIMITED v WU [2022] NZHC 2067 [19 August 2022]

[1] Ms Fan, the third defendant, on 15 August 2022, filed an application for a stay for the orders of possession that I made in favour of the plaintiffs on 5 August 2022.1

[2] The first defendant, Mr Wu, had filed a separate stay application on 8 August 2022, which I dismissed in a judgment issued on 12 August 2022.2

[3] Why Ms Fan delayed in bringing her application for a stay was not explained, but it leaves me with the impression that it was designed to further delay matters.

[4] In any event, having considered the stay application by Ms Fan, I am satisfied that it does not add anything to the application for a stay by Mr Wu, and it is accordingly dismissed.

[5] Ms Fan’s argument is based on the consolidation issue referred to in my earlier stay judgment and in earlier judgments of this Court.

[6] Ms Fan refers to an email she received from the Court with a copy of the substantive judgment in this matter, issued by Justice Gendall on 27 September 2019 (the substantive judgment).3 In that judgment, Gendall J dismissed Ms Fan’s claim that the property in issue in that proceeding (the one now subject to the order for possession) was held on trust for her. The subject matter of that email from the Court has in the subject line, “CIV-2018-409-612”. The proceeding issued by Ms Fan alleging a trust she relied on was CIV-2018-409-238. However, the two proceedings were consolidated, and it is clear beyond doubt that Justice Gendall’s decision dealt with both proceedings.

[7] At the time Gendall J’s judgment was released, Ms Fan was represented by experienced counsel to whom the judgment was also sent. There can not have been any confusion or uncertainty as to whether the substantive judgment related to both proceedings.

1      Stalix Property Ltd v Wu [2022] NZHC 1928.
2      Stalix Property Ltd v Wu [2022] NZHC 2006.
3      Li v Wu [2019] NZHC 2461.

[8] This is not a point of substance and is not a basis to challenge the possession order.

[9] The fact is, Ms Fan’s opportunities to challenge the string of judgments that have led to the possession order are now exhausted. The possession order is a consequence of those prior orders having been made…

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 2067
Decision Date: 19 August 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, the plaintiffs, Stalix Property Limited and Stress Free Chairs, Dining and Lounge Limited, were granted an order for possession of a property against the defendants, Yi Heng Wu, Xi Chen, Zhong Xiu Fan, and Fang Chun Wu. The third defendant, Ms Fan, sought a stay of the possession order, which she claimed was not applicable to her as she believed her separate proceeding was not consolidated with the main proceeding. The court dismissed the application for a stay, finding that the substantive judgment had addressed the issue of consolidation and that the opportunity to challenge the judgments leading to the possession order had been exhausted.

The legal issues before the court were whether the application for a stay was valid, and if the court should grant a stay based on the arguments presented by Ms Fan. The court found that the application for a stay was not valid, as it did not address any substantive issues and was instead a challenge to the judgments made in the case. The court also noted that any conflict in the case was a result of the defendants' refusal to recognize the validity of the court's orders.

The court dismissed the application for a stay, finding that Ms Fan's arguments were based on a technical point that did not challenge the substance of the orders made. The court also found that the prospects of Ms Fan's appeal were poor and did not warrant a stay. The court ordered that the sealed orders for possession be sent to the defendants via email, and that personal service would be necessary for the second and fourth defendants.

The court's final order was that the application for a stay was declined, and the respondents were entitled to costs on this application. The plaintiffs' counsel indicated that he wished to apply for increased or indemnity costs, and any such memorandum was to be filed within five working days of the date of this judgment. If no memorandum was filed by the plaintiffs' counsel, the respondents were entitled to costs on a 2B basis plus disbursements as fixed by the Registrar. If the plaintiffs' counsel filed a costs memorandum, not more than five pages, Ms Fan was to file any response within five working days of that.

Orders