Wu v Xing

Case [2023] NZHC 2409

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-002432

[2023] NZHC 2409
BETWEEN XIAOQING WU and TOWER LAW LIMITED
Judgment Creditors

AND

ZHONG XING

Judgment Debtor
CIV-2022-404-002434

BETWEEN

ERYUN CAO and SAM C S NGU
Judgment Creditors

AND

ZHONG XING

Judgment Debtor

(cont. over page)
Hearing: 17 August 2023

Appearances:

R Parmenter for the Judgment Creditors Judgment Debtor in Person

Judgment:

1 September 2023

JUDGMENT OF ASSOCIATE JUDGE GARDINER


This judgment was delivered by me on 1 September 2023 at 10.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

WU & Ors v XING [2023] NZHC 2409 [1 September 2023]

CIV-2022-404-002437

BETWEEN                 JICAI LI and FANG YU

Judgment Creditors

AND  ZHONG XING

Judgment Debtor

CIV-2022-404-002439

BETWEEN                 NIKUL PANSILA and CHURTON HART

& DIVERS LIMITED

Judgment Creditors

AND  ZHONG XING

Judgment Debtor

Introduction

  1. The judgment creditors and Xing Zhong have been involved in litigation relating to a residential subdivision by Green Land Investment Ltd (Green Land) at Ormiston Road, East Tamaki, in Auckland. The principal proceeding (1511 proceeding) was the subject  of  a  liability  judgment  on  4  August  20221  and  a  remedies  judgment  on   7 June 2023.2 The first to seventeenth and nineteenth plaintiffs claim that, pursuant to agreements for sale and purchase with Green Land, they each have an interest as either purchasers or their nominees in the subdivision. The eighteenth plaintiffs claim to have an interest in lots in the subdivision under a land swap agreement with Green Land.    Mr Xing is the third defendant in the 1511 proceeding.

  1. The judgment creditors in the 2437 proceeding are the first plaintiffs in the 1511 proceeding.3 Mr Xing was ordered to pay costs to them and the other plaintiffs when he unsuccessfully applied to vary the terms of an interim injunction given in that proceeding (injunction variation judgment).4


  1. Li v Green Land Investment Ltd [2022] NZHC 1906.

  2. Li v Green Land Investment Ltd [2023] NZHC 1399.

  3. Jicai Li and Fang Yu.

  4. Li v Green Land Investment Ltd [2022] NZHC 3321.

  1. The judgment creditors in the 2432,5 2434,6 and 2439 proceedings,7 have agreements to purchase properties in the development from plaintiffs in the 1511 proceeding or their assignees. Those creditors lodged caveats to protect their interests. Mr Xing was ordered to pay costs when he applied unsuccessfully to remove the caveats (caveat judgment).8

  1. Each judgment creditor issued a bankruptcy notice against Mr Xing based on the costs order in their favour. Mr Xing now applies to set aside those bankruptcy notices.

  1. The principal issue in each case is whether Mr Xing has a genuine, triable cross-claim that is equal to or greater than the costs order.

  1. Mr Xing says that in each case the bankruptcy notices should be set aside because:

(a)He will receive around $10 million in net proceeds from settlements ordered by Jagose J in the remedies judgment.

(b)He has a claim against the…

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Wu v Xing [2023] NZHC 2409
Case
[2023] NZHC 2409
Decision Date

CaseChat Overview and Summary

In Wu v Xing, the applicants, Xiaoqing Wu and Tower Law Limited, Eryun Cao and Sam Ngu, and Nikul Pansila and Churton Hart and Divers Ltd, seek to set aside bankruptcy notices issued against the respondent, Mr Xing. These bankruptcy notices were based on costs orders in their favour after Mr Xing unsuccessfully applied to remove caveats protecting the applicants' interests in properties from a residential subdivision. The core issue before the court was whether Mr Xing had a genuine, triable cross-claim equal to or greater than the amounts specified in the costs orders, which would permit setting aside the bankruptcy notices.

The court examined the merits of Mr Xing's claims, including his argument that the purported mortgagee sales were void, and that Green Land Investment Limited remained liable under the agreements with the applicants. Mr Xing also argued that the bankruptcy notice issued by the 2437 judgment creditor should be set aside due to additional specific reasons. The court assessed whether these claims were sufficiently robust to warrant setting aside the bankruptcy notices.

The court concluded that Mr Xing did not have a genuine, triable cross-claim that met the threshold required to set aside the bankruptcy notices. The claims presented by Mr Xing were not deemed to be equal to or greater than the amounts specified in the costs orders. Therefore, the court dismissed the applications to set aside the bankruptcy notices.

No further orders were made beyond the dismissal of the applications to set aside the bankruptcy notices.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The judgment creditors in the 2432,5 2434,6 and 2439 proceedings,7 have agreements to purchase properties in the development from plaintiffs in the 1511 proceeding or their assignees. Those creditors lodged caveats to protect their interests. Mr Xing was ordered to pay costs when he applied unsuccessfully to remove the caveats (caveat judgment).8 Each judgment creditor issued a bankruptcy notice against Mr Xing based on the costs order in their favour. Mr Xing now applies to set aside those bankruptcy notices. The principal issue in each case is whether Mr Xing has a genuine, triable cross-claim that is equal to or greater than the costs order. Mr Xing says that in each case the bankruptcy notices should be set aside because: Additionally, Mr Xing says that the bankruptcy notice served by the 2437 judgment creditor should be set aside because: Xiaoqing Wu and Tower Law Limited. Eryun Cao and Sam Ngu. Nikul Pansila and Churton Hart and Divers Ltd. Zhong v Wu [2022] NZHC 3322. Further, that the bankruptcy notices served by the 2432, 2434 and 2439 judgment creditors should be set aside because: The background to the dispute between the parties is set out in considerable detail in the liability judgment of Jagose J. Venning J summarised this background in the injunction variation judgment:9[12] In short, the substantive proceeding relates to a residential subdivision by Green Land Investment Limited (Green Land) of property situated in Ormiston Road, East Tamaki, in Auckland. The part of the subdivision relevant to the proceeding and affected by the judgment comprises 22 lots. In their statement of claim the first to seventeenth and nineteenth plaintiffs claimed that, pursuant to unconditional agreements for sale and purchase with Green Land they each have an interest as either purchasers themselves or as nominees of purchasers in specified lots in the subdivision. The eighteenth plaintiffs are interested in three lots which they say Green Land was to transfer to them in exchange for their transfer of a driveway at 443 Ormiston Road to Green Land. Li v Green Land Investment Ltd [2022] NZHC 3321. When the proceeding was commenced in July 2021, the plaintiffs obtained an urgent without notice interim injunction. The injunction prevented the Registrar‑General of Land from registering a transfer of the ANZ Bank Limited (ANZ) mortgage to Mr Xing or transfers by Mr Xing connected to that mortgage.10 On 15 February 2022, Davison J varied the interim injunction to allow registration of the transfer of the ANZ mortgage to Mr Xing, and to exclude eight titles from any restrictions under the interim injunction.11 The plaintiffs did not claim to have any interest in these eight titles. The substantive trial took place in March 2022 before Jagose J. In the liability judgment delivered on 4 August 2022, Jagose J held that the purported mortgagee sales of each of the plaintiffs’ lots were void and that Green Land remained liable under the agreements with the plaintiffs.12 His Honour said that he was inclined to order specific performance but reserved the question of relief.13 He continued the interim injunction as varied by Davison J pending his ultimate determination of the proceedings.14

Ratio Decidendi

Legal Principle Established

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