Worldwide Holidays Ltd v Wang

[2017] NZHC 756

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-000646 [2017] NZHC 756

BETWEEN

WORLDWIDE HOLIDAYS LTD

Plaintiff

AND

XIAONING WANG First Defendant

LIN HAIMENG Second Defendant

LI HEMING Third Defendant

BU JUN
Fourth Defendant

ASB BANK LTD Fifth Defendant

ANZ BANK NEW ZEALAND LTD Sixth Defendant

Hearing:	20 April 2017
Appearances:	T J G Allan and S F Powrie for Plaintiff J Nguy for First, Second and Fourth Defendants No appearance for Third, Fifth and Sixth Defendants
Judgment:	20 April 2017

ORAL JUDGMENT OF WYLIE J

Solicitors/counsel:

Grove Darlow & Partners, Auckland

Jesse & Associates, Auckland

WORLDWIDE HOLIDAYS LTD v WANG [2017] NZHC 756 [20 April 2017]

Introduction

[1]      On  12 April  2017,  Fitzgerald  J  issued  a  freezing  order  against  the  first defendant, Ms Wang.  She provided her reasons for making that order in a judgment issued later on the same day.

[2]      Fitzgerald J declined to make a freezing order against the second defendant on the materials which were then available to her.  At that stage it was not known whether or not the second defendant was a natural person.  Further, the Judge was unsure whether or not service could be effected on the second defendant.  Instead she made orders requiring the first defendant to disclose the identity of the second to fourth defendants.

[3]      Pursuant to orders made by Fitzgerald J, the matter has been called before me today as duty Judge.   Mr Allan and Mr Powrie have appeared on behalf of the plaintiff. Mr Nguy has appeared on behalf of the first, second and fourth defendants.

[4]      There is a considerable measure of agreement between the parties.

First defendant

[5]      Mr Allan advises that last evening he was served with some 300 pages of bank statements by the ANZ, pursuant to the orders made against it.  He has not as yet received any documentation from the ASB.  He has sought that the freezing order against the first defendant should remain in place for a period of 21 days to enable him to obtain the information from the ASB, and so that he and the plaintiff have time to analyse the information made available.

[6]      Mr Nguy has filed an affidavit on behalf of the first defendant.  One of the orders made by Fitzgerald J required the first defendant to surrender her passport to the Registrar by 5pm today.   The first defendant has deposed that her passport is currently with Immigration New Zealand.   She has sought that a residence visa which she holds should be transferred to her passport.  That visa was attached to her old passport which has since expired.   She has not as  yet received her current passport back from Immigration New Zealand.  She has contacted Immigration New Zealand by telephone and has been advised that the application for transfer of the visa is in the final stages of processing.   She has arranged to collect her passport

from Immigration New Zealand’s Auckland office when the application is complete and that she hopes that will be sometime this week.  Mr Allan had no objection to the order requiring surrender of the passport being enlarged to 5pm on 26 April 2017.

[7]      By consent, the freezing order against the first defendant is extended for a further period of 21 days.  It will expire at 5.00pm on 11 May 2017.  The matter is to be placed before the duty Judge on that date.  If the plaintiff seeks to continue the order thereafter, it will have to satisfy the duty Judge that a continuation of the order is appropriate.

Second defendant

[8]      The second defendant has been served.  As noted, Mr Nguy appears for her today.  It is now clear that the second defendant is a natural person and that she is resident here in New Zealand.

[9]      Mr Allan sought that the freezing order should be extended to the second defendant  and  that  the  ancillary  order  the  plaintiff  obtained  against  the  first defendant should also be made against the second defendant.   He filed a comprehensive memorandum and asserted from the bar:

(a)      that the second defendant, along with another person, is the registered proprietor of a unit in a mall in Newmarket, and also along with others, of a residential house at 10 Da Vinci Place, Massey, Waitakere;

(b)      that the unit is for sale; and

(c)      that  the  documents  made  available  by  the ANZ  disclose  that  the second   defendant   uplifted   the   monies   in   her   bank   accounts immediately after the proceedings were served on her.

[10]     Mr Nguy resisted any orders being made today.  He has only just received instructions and he sought that the application should be dealt with on an on notice basis.

[11]     After  perusing  the  relevant  materials  filed  by  the  plaintiff,  and  after discussing the matter with counsel, I was satisfied that there is an arguable case that

the second defendant has received monies from the first defendant without adequate consideration,  and  that  those  monies  were stolen  from  the plaintiff  by the first defendant.   Prima facie the alleged facts disclosed in the materials filed with the Court suggest that there may be a tenable cause or causes of action against the second defendant.   There also appears to me to be a risk of dissipation, if it is assumed that the assertions from the bar by Mr Allan are correct – namely that the second defendant cleared out her bank accounts immediately following service of the proceedings on her, and that the unit at Newmarket is for sale.  Clearly both the unit and the residential property are assets within the jurisdiction to which a freezing order can attach.

[12]     I am satisfied that it is appropriate to make an interim freezing order, pending further order of the Court.  I direct as follows:

(a)       A freezing order is made in respect of the second defendant’s assets

at:

(i)       CT548943 (being unit 5N deposited plan 425225); and

(ii)      CTNZ41A/13 (being Lot 25 deposited plan 84519).

to the extent of the second defendant’s interests therein, and up to a maximum value of $1,454,250.55 (being the maximum value of the plaintiff’s presently known claim).

(b)      This order is to remain in force until further order of the Court.

(c)       The Registrar is to allocate a fixture before me on Wednesday 26

April 2017 (estimated time 1.5 hours) so that I can consider whether the order should remain in place.  The fixture is to proceed at a time to be advised to counsel by the Registrar.

(d)The  plaintiff’s  application  for  ancillary  orders  against  the  second defendant is adjourned to that date for hearing.

(e)       The plaintiff is to file and serve an affidavit dealing with the matters

covered  in  counsels’  submissions  and  any  other  matters  that  the

plaintiff considers relevant, on or before 5.00pm on Friday 21 April

2017.

(f)       Any notice of opposition and supporting affidavit(s) are to be filed and served, on or before 5.00pm on Monday 24 April 2017;

(g)      any affidavit in reply, is to be filed and served on or before 10am on

Wednesday 26 April 2017.

[13]     I record that Mr Allan has advised that if the unit is sold, the plaintiff has no opposition to the sale being settled, providing appropriate arrangements can be made to secure the net proceeds of sale.  I reserve leave to the second defendant to make urgent application to the Court in the event that the unit is sold and settlement is scheduled to occur before Wednesday 26 April 2017.

Third defendant

[14]     Turning to the third defendant, the plaintiff is still unsure whether or not the third defendant is a natural person.   If the third defendant is a natural person, the plaintiff accepts that it is likely that he or she resides in China.  No orders as against the third defendant were sought before me today.  I reserve leave to the plaintiff to apply to the Court on 24 hours’ notice in the event that the plaintiff considers that orders against the third defendant are appropriate and within the Court’s jurisdiction.

Fourth defendant

[15]     Regarding the fourth defendant, I am advised that she is the mother of the first defendant.   The plaintiff asserts that service has been effected on the fourth defendant, but he is unable to prove service.  Nevertheless Mr Nguy appeared today on behalf of the fourth defendant.  The plaintiff did not seek any orders against the fourth defendant.  I do however reserve leave to the plaintiff to apply on 24 hours’ notice if the need arises.

Fifth and sixth defendants

[16]     Regarding  the  fifth  and  sixth  defendants,  Mr  Allan  filed  a  consent memorandum from both advising that they do not oppose the plaintiff’s application to extend the freezing orders made by Fitzgerald J.

[17]     Both the fifth and sixth defendants requested leave to apply to have the orders varied at any time. That reservation is appropriate and I so order.

Costs

[18]     The costs of today’s hearing are reserved.

Wylie J