Treasure River Enterprise Limited v Wang

[2018] NZHC 1947

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-2789

[2018] NZHC 1947

BETWEEN

TREASURE RIVER ENTERPRISE LIMITED

Entitled Party

AND

BO WANG

Liable Party

Hearing:	On the papers
Counsel:	B O O’Callahan for Entitled Party
Judgment:	1 August 2018

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 1 August 2018 at 12:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

K3 Legal Ltd, Auckland

TREASURE RIVER ENTERPRISE LTD v WANG [2018] NZHC 1947 [1 August 2018]

[1]    On 23 May 2018 Lang J entered judgment by default for Treasure River Enterprise Limited (Treasure River), against Mr Bo Wang in the sum of HK$35,645,188.10 with costs of NZ$8,931.50.1 The judgment sum is the equivalent of approximately NZ$6M. The proceeding involved a claim by Treasure River to recover moneys owing under a loan facility entered into pursuant to a loan agreement dated 31 May 2016 between Vigo Hong Kong Investment Limited (Vigo) and Natway International Service (Natway), a duly incorporated company registered in Hong Kong.

[2]    Treasure River alleged in the proceeding that on 31 May 2016, a guarantee of the loan facility was executed by Mr Wang, his former wife Mingyu Gao, SCA Group Limited (a duly incorporated company registered in New Zealand), and two other persons who were employees or associates of Mr Wang and Ms Gao. It was further alleged that on 28 June 2016, Mr Wang, SCA and Ms Gao also executed a joint and several unlimited guarantee in respect of credit facilities provided by Vigo to Natway. Mr Wang did not file a statement of defence, so judgment was entered against him by default.2

[3]    Treasure River now makes a without notice application pursuant to r 17.12 of the High Court Rules 2016 for an order for examination of Mr Wang. Treasure River applies for the following:

(a)An order requiring Bo Wang to attend the High Court at Auckland to be orally examined as to his income, expenditure, assets, liabilities and generally as to his means of satisfying the judgment entered on 23 May 2018 and sealed the same day.

(b)An order requiring Bo Wang to produce at the examination hearing bank statements, books and other documents relating to his income, expenditure, assets and liabilities and generally as to his means of satisfying the judgment entered for Treasure River on 23 May 2018.

1      Treasure River Enterprise Ltd v Natway International Service Ltd HC Auckland CIV-2017-404- 2789, 23 May 2018.

2      Pursuant to r 15.7 of the High Court Rules 2016.

(c)An order that Bo Wang pay Treasure River’s costs.

[4]    An affidavit by Joo Yeon Leenoh is filed in support of the application. Joo Leenoh is a solicitor employed by K3 Legal Limited, who are the solicitors for Treasure River.

[5]    Ms Leenoh states that Bo Wang has failed to make any payment towards satisfaction of the judgment sum or costs awarded to Treasure River, although it appears that to date there has been no formal demand made for payment. Ms Leenoh further states that Bo Wang has stated in an affidavit filed in the substantive proceedings3 that he is a New Zealand citizen and frequently travels between New Zealand and China. Ms Leenoh notes that Bo Wang stated in his affidavit that his marriage to Mingyu Gao was dissolved in March 2017 following their separation in 2014. However, notwithstanding the separation, Mr Wang said that he had continued to reside with Ms Gao in her house. Ms Leenoh also notes that Mr Wang presented documents in the proceeding which contained the forged signatures of Ms Gao on the guarantee documents.

[6]    Ms Leenoh further notes that although Mr Wang was adjudicated bankrupt on 3 September 2013, Treasure River has been unable, despite inquiries, to find out whether his bankruptcy was subsequently annulled, although a proceeding which relates to the annulment of his bankruptcy has been identified and enquiries regarding its outcome are presently underway.4

[7]    On this basis Treasure River submits that there are sufficient grounds for the Court to make an order for Bo Wang’s examination so as to enable it to obtain information regarding his assets, liabilities and ability to settle the judgment and costs entered against him.

[8]    From the contents and exhibits attached to Ms Leenoh’s affidavit, it is clear that Treasure River presently has only limited information regarding Bo Wang’s financial position, his assets and liabilities. It is also apparent that his financial

3      Sworn at Shanghai, China on 9 May 2018.

4      CIV-2013-404-1269.

situation is likely to be complicated, as his former wife (Ms Gao) has various business and property assets and trusts and it is not clear whether they concluded a property relationship settlement at the time or after their marriage ended.

[9]    While the making of an order for examination under r 17.12 involves the exercise of the Court’s discretion, I am satisfied that it is appropriate to make an order for Bo Wang’s examination. As noted by Abbott AJ in Wiltshire Investments Ltd v Halstead, the Court’s approach to an application once judgment has been entered is quite different from its approach during the pre-judgment phase. Once judgment has been entered the judgment creditor has a “cast iron justification for wanting to know” the judgment debtor’s assets and ability to satisfy the judgment.5

[10]   The present application is made without notice. Rule 17.12(5) provides that an application under the rule may be made without notice and may be granted by a Judge without a hearing.

[11]   Having regard to the contents of Ms Leenoh’s affidavit, I am satisfied that it is in the interests of justice that an order be made on a without notice basis rather than requiring service of the application upon Bo Wang. Having regard to the background of this matter, I am satisfied that an order for examination is appropriate, and that Mr Wang will not be unduly prejudiced by an order being made on a without notice basis in these circumstances.

[12]   Accordingly I make an order for the examination of Bo Wang in terms of paragraphs (a), (b) and (c) of the without notice application.

[13]   The date for examination is to be fixed by the Registrar. I make an order that the costs of and incidental to this application are reserved and shall be determined at the conclusion of the examination hearing.

Paul Davison J

5      Wiltshire Investments Ltd v Halstead (2010) 19 PRNZ 932 (HC) at [14]; AMP Finance Ltd v Linecorp Investments Ltd HC Auckland CP351/90, 14 June 1991.