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 by the Court and not appealed.

[10]              To the extent Ms Fan or Mr Wu assert that the form of the judgment issued by the Court relating to Gendall J’s substantive judgment is not in compliance with the High Court Rules 2016 (the Rules), I have already pointed out in my judgment of  12 August 2022 that, even if that was correct, such an irregularity would not impact on the validity of the orders made. The high point for Mr Wu and Ms Fan is that they take a technical point which does not go to the substance of the orders made. In any event, as I have said, the orders made that have led to the possession order have not been overturned and, in substance, Ms Fan’s stay application is a challenge to those judgments by a side route.

[11]              At the telephone conference on 12 August 2022, Ms Fan, through Mr Wu translating, developed three points.

[12]              The first point was, that she noted the case had been running for a long time, had taken a tortious path and that she and her family were living hard every day. She maintained the position that her proceeding, CIV-2018-409-238, was a separate proceeding and that no judgment had been issued in her proceeding. Ms Wu said as no order had been made in proceeding CIV-2018-409-238, there was no basis for the ownership of the Blarney Street property to change. This is the consolidation point that I have already dealt with.

[13]              The second point Ms Fan raised was a general one, that to enforce the substantive judgment, that is, to allow the order for possession to be given effect to, would be to cause conflict and the Court should not create more conflict. Ms Fan said that the conclusion of the relationship property proceeding had not resolved the conflict within the family and the Court should not act to cause further conflict. In

that respect, any conflict is a result of Ms Fan and Mr Wu refusing to recognise the validity of the orders of this Court.

[14]              Ms Fan considered it was not correct or appropriate for the Court to make an order taking away her property, that being a reference to Ms Fan’s claim that the property to which the possession order relates was held on trust for her.  That is     the very point not accepted by Justice Gendall in his substantive judgment.

[15]              The third point raised by Ms Fan was, she should be given an opportunity to pursue her appeal against the possession order. She submitted that until her appeal was concluded, a stay should be ordered. However, bringing an appeal does not entitle the appellant to a stay. This point is not a separate ground for the granting of a stay. It is, in substance, a claim that the stay will cause prejudice and inconvenience to  Ms Fan. I accept that, but I consider the prospects of the appeal to be so poor as to not warrant a stay. Again, this was essentially the ground upon which Mr Wu’s stay was declined.

[16]              On the assumption that a stay was declined, Mr Riach, counsel for the plaintiffs, sought to raise the practicalities of service of the orders of possession. He noted Ms Fan and Mr Wu had provided addresses for service and so the sealed orders for possession can be sent by way of service to their e-mail address. As to the other defendants who have taken no steps, Mr Wu was not prepared to accept service on their behalf. Personal service will be necessary upon the second and fourth defendants.

[17]The order I make is that the application for a stay is declined.

Costs

[18]              The respondents are entitled to costs on this application. Mr Riach indicated he wished to apply for increased or indemnity costs. Any such memorandum is to be filed within five working days of the date of this judgment. If no memorandum is

filed by Mr Riach, the respondents are entitled to costs on a 2B basis plus disbursements as fixed by the Registrar. If Mr Riach files a costs memorandum, not more than five pages, Ms Fan shall file any response within five working days of that.

Associate Judge Lester

Solicitors:

Harmans, Christchurch (for Plaintiffs)

Copy to:

Y H Wu (self-represented Defendant ) Z X Fan (Third Defendant)

X Chen (Second Defendant) F C Wu (Fourth Defendant)