Tan v HND Holdings Limited - [2024] NZHC 1568

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-002725

[2024] NZHC 1568

BETWEEN
JIAN TAN

First Plaintiff

GOLDEN CIRCLE INVESTMENT LIMITED

Second Plaintiff

EE KUOH LAU
Third Plaintiff

AND

HND HOLDINGS LIMITED

Defendant/Applicant

Hearing: 13 June 2024

Appearances:

R O Parmenter for the Applicant/Defendant

No appearance for the Third Plaintiff/Respondent

Judgment:

14 June 2024

JUDGMENT OF VENNING J

This judgment was delivered by me on 14 June 2024 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Carson Fox Bradley, Auckland
Essence Law Ltd, Auckland

Counsel: R O Parmenter, Auckland

TAN v HND HOLDINGS LTD [2024] NZHC 1568 [14 June 2024]

Introduction

[1] HND Holding Limited (HND) applies to strike out the claim by Ee Kuoh Lau (Mr Lau) the third plaintiff in this proceeding against it. HND also seeks costs.

Background

[2] The general background to these proceedings can be taken from a judgment of Associate Judge Brittain on a caveat application from 14 December 2023.1

[4] HND holds a registered mortgage over the property at 18 Newington Road, Henderson, Record of Title Identifier NA902/189. The mortgagor and registered owner is Golden Circle Investment Limited. HND's mortgage was registered on 25 March 2022.

[5] Golden Circle defaulted in its obligations to re-pay a loan to HND. HND has entered into a contract to sell the mortgaged property to a third-party, North Harbour Development Limited, in exercise of HND's power of sale under the mortgage. Settlement of the sale to North Harbour Development Limited is scheduled to occur five working days after removal of Mr Lau's caveat.

[6] Mr Lau registered his caveat against the title to the property on 26 July 2023. Mr Lau's caveat asserts the following equitable interests in the land:

(a)an interest as beneficiary under a constructive trust, where Golden Circle is constructive trustee;

(b)an interest as purchaser of the land under an agreement for sale and purchase dated 11 November 2022; and

(c)an interest as lessee of the land under a pre-paid lease of the property pursuant to which he is entitled to rent the property from 11 November 2022 until 11 November 2047.

[7] HND seeks an order removing the caveat, under s 142 of the Land Transfer Act 2017, so that it can complete the sale of the property.

[8] This is at least the fifth occasion on which Mr Lau has attempted to prevent a financier from exercising its power of sale under a mortgage. The present proceeding is very similar to:

(a)Goodmore Investments (New Zealand) Ltd v Lau, where Mr Lau lodged a caveat against a title to a property in Flat Bush claiming to have exactly the same interests as he claims in this proceeding; and

1 HND Holding Ltd v Lau [2023] NZHC 1194.

(b)the situation in HND Holding Ltd v Lau (CIV-2023-404- 1500) and HND Holding Ltd v Lau (CIV-2023-404-2761 and 2783).

[9] In Goodmore Investments, van Bohemen…

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.

Keep reading for free

Create a free CaseChat account to read Tan v HND Holdings Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZHC 1568
Decision Date: 14 June 2024

CaseChat Overview and Summary

In the High Court of New Zealand, HND Holdings Limited applied to strike out the claim made by Ee Kuoh Lau, the third plaintiff, against it. HND sought costs for the claim, which was deemed to be frivolous and vexatious. The case was heard on 13 June 2024, with R O Parmenter representing the defendant and applicant, and no appearance for the third plaintiff. The judgment was delivered on 14 June 2024 by Venning J. The court was tasked with determining whether the claim by Mr Lau against HND disclosed a reasonably arguable cause of action, whether it was frivolous or vexatious, or if it amounted to an abuse of the court process. These issues were assessed under the relevant rules and legal principles.

The court found that Mr Lau had not filed a notice of opposition to the application and did not appear when the application was called. The court noted that Mr Lau had a history of similar proceedings against financiers attempting to exercise their power of sale under mortgages. The claim by Mr Lau, that he was a one-third beneficial owner of the second plaintiff, Golden Circle Investment Limited, was considered insufficient to sustain a reasonably arguable cause of action. The court held that a shareholder cannot bring a claim in respect of losses incurred by the company due to actions by a third party; only the company itself can sue for such injury. Mr Lau's pleadings did not disclose a separate and personal claim, and his failure to comply with the court's directions further supported the finding that the proceeding was vexatious.

The court granted the application to strike out Mr Lau's claim against HND, finding that it did not disclose a reasonably arguable cause of action and was vexatious. HND was awarded costs on a 2B basis, amounting to $3,704.50, along with filing and sealing fees, totaling $4,254.50. This decision ensures that HND is not further vexed by Mr Lau's claims, which have no legal basis.

Orders