Wu v Liu - [2022] NZHC 3311

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-447

[2022] NZHC 3311

BETWEEN HUA WU also known as DANNY WU Plaintiff

AND

JINXING LIU

First Defendant

YUHUA LIU
Second Defendant

Continued overleaf

Hearing: 2 November 2022

Appearances:

Submissions and evidence completed:

M Lennard and Y Mortimer-Wang for Plaintiff D Bigio KC and A Grant for First Defendant A Choi for Second Defendant (Excused)

No appearance by or on behalf of Third to Sixth Defendants

15 November 2022

Judgment:

8 December 2022

JUDGMENT OF POWELL J

[Application for freezing order against first defendant]

This judgment was delivered by me on 8 December 2022 at 4.30 pm.
Pursuant to R 11.5 of the High Court Rules.

…………………..
Registrar/Deputy Registrar

Solicitors:
Zhang Law Ltd, Auckland for Plaintiff Domain Law, Auckland for First Defendant
Winston Wang & Associates, Auckland for Second Defendant

HUA WU also known as DANNY WU v JINXING LIU [2022] NZHC 3311 [8 December 2022]

YONG LIU also known as JACKIE LIU Third Defendant
TIMBER KING LIMITED
Fourth Defendant
WENGUI LIU
Fifth Defendant

NANNAN GENG
Sixth Defendant

[1] The plaintiff, Hua Wu, seeks a freezing order over a property located in Whenuapai owned by the first defendant, Jinxing Liu (“the Whenuapai property”).

[2] There is no dispute that to obtain a freezing order Mr Wu must demonstrate a good arguable case against Mr Liu,1 assets over which the order can apply, a danger that the assets may be dissipated,2 and that it is in the interests of justice for the order to be made.3 In this case while there is no dispute that the Whenuapai property is an asset to which the order sought can apply, the other parts of the test are all in dispute.

A good arguable case?

[3]As the Court of Appeal stated in Hanney v Mount:4

[22] … A good arguable case against the respondent is therefore established if the allegations in the proposed claim are capable of tenable argument and are supported by sufficient evidence, bearing in mind the early stage at which the application is likely to be brought.

The case for Mr Wu — good arguable case

[4]Mr Lennard, on behalf of Mr Wu, has submitted that payments totalling

$400,000 made by Mr Wu to the fourth defendant, together with a payment of
$600,000 and the transfer of a property in Mangere Timber King to Mr Liu were made pursuant to blackmail on the part of Mr Liu and his son Yong Liu, the third defendant, rather than as Mr Liu contends:

(a)for reimbursements of amounts allegedly misappropriated by Mr Wu from Timber King (the $400,000 payments); and

(b)for the purported repayment of a 2008 loan which Mr Wu claims was never borrowed from Mr Liu, (the $600,000 payment and the transfer).

1 High Court Rules 2016, r 32.2; and Robert Osborne (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR 32.2.03], citing Dotcom v Twentieth Century Fox Film Corp [2014] NZCA…

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.

Continue reading Wu v Liu

Details

AGLC: Wu v Liu [2022] NZHC 3311
Case: [2022] NZHC 3311
Decision Date: 8 December 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Hua Wu (also known as Danny Wu) against Jinxing Liu involves a dispute over a property in Whenuapai, owned by the first defendant. The plaintiff seeks a freezing order over the property, which hinges on the ability to establish a good arguable case against the defendant, the presence of assets subject to the order, a risk of dissipation of those assets, and the interests of justice. Hua Wu contends that payments made to Jinxing Liu and the transfer of a property in Mangere were the result of blackmail by Liu and his son, rather than for reimbursement of misappropriated funds or repayment of a loan. The court considered the evidence presented, including the lack of contemporaneous documentation for Liu's claims of a 2008 loan, and found that Wu had not met the threshold for a good arguable case. Furthermore, the court found that Wu was unable to show a genuine risk of dissipation concerning the Whenuapai property, dismissing the application for a freezing order.

The court's reasoning focused on the lack of coherence in the evidence presented by both parties, with little support for either narrative. The court found that Wu's claims of blackmail were not corroborated by the evidence, and that the transactions in question occurred while Wu was legally represented, without any indication they were not genuine. The court also noted that Liu's actions did not demonstrate a pattern of divestment or an intention to dispose of assets following the issue of the present proceedings. Ultimately, the court concluded that Wu's application for a freezing order against Liu must be dismissed.

The final orders of the court are as follows: Mr. Wu's application for a freezing order against Mr. Liu is dismissed, and Mr. Liu is entitled to costs on the application. If these costs cannot be agreed upon within one month, the court will determine the issue following the filing of memoranda.

Orders