Stalix Property Ltd v Wu

[2022] NZHC 1928

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-241

[2022] NZHC 1928

IN THE MATTER

of an application for recovery of land

UNDER

Parts 12 and 13 of the High Court Rules 2016

BETWEEN

STALIX PROPERTY LIMITED and

STRESS FREE CHAIRS, DINING AND LOUNGE LIMITED
Plaintiffs

AND

YI HENG WU (also known as Henry Wu)

First Defendant

continued….

Hearing:

4 August 2022

Appearances:

G Riach for Plaintiffs

Mr Wu (First Defendant) in person
Second, Third and Fourth Defendants present in Court

Judgment:

5 August 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

STALIX PROPERTY LIMITED v WU [2022] NZHC 1928 [5 August 2022]

AND              XI CHEN

Second Defendant

AND              ZHONG XIU FAN

Third Defendant

AND              FANG CHUN WU

Fourth Defendant

[1]                 The plaintiffs are the registered proprietors of a property at 15 Blarney Place, Casebrook, Christchurch (the property). The property is occupied by the defendants. The first defendant is a previous registered proprietor of the property.

[2]                 The plaintiffs seek by summary judgment an order for possession on the basis they have called upon the defendants to vacate the property and they have refused to do so. Behind that state of affairs is a lengthy history of proceedings leading to the property being sold to the plaintiffs pursuant to an order for sale made by this Court. The plaintiffs were not involved in that prior litigation and are arms-length purchasers for value.

Litigation history

[3]                 The order for sale arose from relationship property proceedings between the first named defendant, Mr Wu, and his former wife, Ms Li. Mr Wu’s mother, Ms Fan, the third defendant, commenced proceedings in this Court claiming that the property said by Ms Li to be relationship property was subject to a Trust in her favour. Ms Li’s relationship property proceeding filed in the Family Court was transferred to this Court and consolidated with Ms Fan’s proceeding.

[4]                 Gendall J’s judgment relating to the consolidated proceedings was issued in September 2019 with Ms Li being largely successful.1 Ms Fan’s Trust claim was not successful with it being held the funds she introduced was a relationship debt. Mr Wu

1      Li v Wu [2019] NZHC 2461.

took no steps to satisfy Ms Li’s judgment, resulting in the order for sale being made on 28 September 2021.2 An application by Ms Fan to stay the sale was dismissed by Osborne J in March 2022 (the March judgment).3

[5]                 The history of appeals by Mr Wu and Ms Fan is set out in detail in Osborne J’s March judgment where his Honour concluded all rights of appeal had been exhausted.

[6]                 The order for sale resulted in a contract by which the Registrar sold the property to the plaintiffs on 19 April 2022. The contract settled on 23 May 2022. Notice was given by the new registered proprietors to the defendants in June 2022 to vacate the property with this proceeding following from their refusal to vacate the property.

Plaintiffs’ claim

[7]                 The plaintiffs have brought an action for the recovery of the land. This is discussed in Todd on Torts.4 The author notes that a person may be a trespasser in the sense of being in wrongful occupation of land without being amenable to an action for trespass to land. To sue in trespass, a plaintiff must have had actual possession at the time of the trespass or, at the time of the trespass, a right to the immediate possession of the land and before bringing an action, have achieved actual possession by entry upon any part of the land. The authors note:

This leaves out the person who had at the time of the trespass a right to the immediate possession of the land but who has not been able to acquire actual possession by entry, no doubt because of the trespasser’s continued wrongful presence on the land. A remedy is provided by a separate action called the action for recovery for land, formally an action the ejectment … In order to succeed, the plaintiff must prove, at the time of commencing the action, an entitlement to immediate possession of the land, but denial of such possession by the defendant.

[8]                 This is the situation the plaintiffs are in here. As owners they have a right to possession but cannot so acquire possession because the defendants remain in occupation of the property.

2      Li v Wu [2021] NZHC 2552 (reissued 20 November 2021).

3      Li v Wu [2022] NZHC 333.

4      Stephen Todd (ed) Todd on Torts (8th ed, Thomson Reuters, Wellington, 2019) at [9.3.01].

[9]                 Given this is an application for summary judgment, I have to determine whether the plaintiffs have satisfied me the defendants do not have an arguable defence to the claim.

[10]             Mr Wu has filed a document called “[n]otice of Appearance and objection to jurisdiction” and a notice of opposition with the defences raised being essentially the same in each document. No other defendant has taken any steps.

[11]Mr Wu refers to the sale as having been undertaken by the Registrar and says:

Therefore, there is no legal relationship between the defendants and the plaintiffs, the agreement has no legal effect on the defendants. It is illegal for the plaintiff to change the registered owner of the property from the defendants name to theirs.

[12]             I do not accept Mr Wu’s submission. The sale was undertaken by the Registrar of the Court by virtue of an order of this Court. The plaintiffs are now the registered proprietors of the property and are entitled to possession of the property. The plaintiffs rely on being the owners of the property for the orders they seek  – not on being in    a contractual relationship with the defendants.

[13]             There is then a claim by Mr Wu that the Registrar did not have authority to set the sale price for the property and enter into a sale agreement. Again, I do not accept this submission. The Registrar was empowered by an order of this Court to conduct the sale. Gendall J, in a judgment re-issued on 20 October 2021, made detailed directions as to how the sale was to be undertaken. Here, the property was passed in at auction with the Registrar then selling by private treaty – that two stage process being as directed by Gendall J. There is no evidence Gendall J’s directions were not followed.5

[14]             Mr Wu then submits that the enforcement judgment of the Court, that is, the order for sale made in September 2021: “[i]s also inconsistent with legal process”. This argument relates to the fact that the two proceedings that were consolidated originally had different CIV reference numbers. One proceeding (CIV-2018-409-238)

5      Li v Fan [2021] NZHC 2552.

and the other (CIV-2018-409-612). Justice Gendall’s substantive judgment related to both proceedings.

[15]             Mr Wu notes that on the cover sheet of the 27 September 2019 judgment, there is only reference to proceeding CIV-2018-409-612 even though it related to both CIV-2018-409-238 and CIV-2018-409-612. Mr Wu says it was illegal to enforce, that is, to make the order for sale before judgment had been delivered in proceeding CIV-2018-409-238. Mr Wu submits that the sale order was not written in the correct legal form and it was therefore an illegal proceeding and the judgment was of no effect.

[16]             This argument cannot survive the March judgment where the same issue is dealt with.    Osborne J examined in detail the scope of Gendall J’s  judgment of     27 September 2019 and concluded it dealt with both proceedings. Osborne J concluded the argument that Ms Fan’s proceeding (being CIV-2018-409-238) had yet to be determined, was “entirely misconceived”.

[17]             Accordingly, Mr Wu relies on the very argument advanced and rejected by Osborne J in the March 2022 judgment. I note that while the March judgment records the application for a stay was made by Ms Fan, Mr Wu  attended the hearing as        a Mackenzie Friend. The assertion that Ms Fan’s Constructive Trust claim has not been resolved is without merit. Judgment was entered on the consolidated proceedings which dealt with both Ms Li’s relationship property proceeding and Ms Fan’s Trust proceeding. Those issues have been finally determined and all appeal rights extinguished. Nothing in Mr Wu’s document gives rise to a defence to the plaintiffs’ claim.

[18]             Mr   Wu   submitted   in   his   notice   of   opposition   that   because    the   27 September 2019 judgment did not refer to CIV-2018-409-238 on its cover sheet, the judgment was invalid and therefore “…. any judgment and execution made after 27/9/2019 about 238 and 616 cases will also have no legal effect”.

[19]             I do not accept this submission. The 27 September 2019 judgment determined the consolidated proceeding  as  determined  in  the  March  2022  judgment.  The  27 September 2019 judgment stands, as does the order for sale judgment that does

refer to both proceedings in its intituling. The order for sale which has led to the plaintiffs being registered proprietors has not been overturned on appeal and was not stayed. I conclude the sale was lawful, having been conducted pursuant to a final order of this Court.

[20]             Mr Wu’s argument, to the extent it relies on a lack of form rendering the sale orders invalid, is incorrect. Mr Wu submits the 27 September 2019 judgment did not comply with High Court Rule 11.6 which concerns the form of sealed orders. Even if there had been non-compliance with this or the other High Court Rules referred to by Mr Wu, r 1.5(1)b(iii) provides failure to comply with the Rules does not nullify any judgment in a proceeding.

[21]             I therefore conclude the plaintiffs are entitled to an order for the recovery of land.

[22]             Accordingly,  there  is  an  order   granting   the   plaintiffs   possession   of 15 Blarney Place, Casebrook, Christchurch (Lot 111 being Deposited Plan 82299 in Record of Title CB47C/700 Canterbury Land Registration District). This order requires the defendants individually and collectively to vacate the property within  48 hours of service of this order upon them.

[23]             This order shall lie in Court for five working days from the delivery of this judgment to allow the defendants time to vacate the property.

[24]             The plaintiffs also seek damages in respect of any damage to the property and/or for loss of use of the property. That application is adjourned.

Costs

[25]             The plaintiffs also seek costs on an indemnity basis. I find the plaintiffs are entitled to costs, such to be quantified by memorandum within five working days of the date of this judgment (not more than five pages). The defendants may reply to that memorandum within a further five working days.

[26]             The balance of this proceeding is adjourned to a telephone conference at 4.30pm on Thursday 15 September 2022 by which time the plaintiffs will be able to determine whether they wish to pursue their damages claim.

Observation

[27]             The defendants need to understand that the effect of the above orders is that they can be removed forcibly from the property. I have extended the time for compliance with this order to permit them to remove their possessions and relocate in an orderly way. However, if they do not comply with the order, it will be enforced by the authorities.

Associate Judge Lester

Solicitors:
Harmans, Christchurch (for Plaintiffs)

Copy to:

Mr Wu (self-represented First Defendant) X Chen (Second Defendant)

Z X Fan (Third Defendant) F C Wu (Fourth Defendant)