Xing v Wang - [2023] NZHC 1273

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2418

[2023] NZHC 1273

IN THE MATTER of the Insolvency Act 2006

AND

IN THE MATTER

of the Bankruptcy of Mengqui WANG

BETWEEN

Zhong XING Judgment Creditor

AND

Mengqui WANG Judgment Debtor

Hearing: 9 May 2023

Appearances:

Mr Z Xing in person (Judgment Creditor) R O Parmenter for Judgment Debtor

Judgment:

26 May 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

This Judgment was delivered by me on 26 May 2023 at 3.30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

XING v WANG [2023] NZHC 1273 [26 May 2023]

[1] Mr Mengqui Wang (Mr Wang) applies to set aside a bankruptcy notice obtained by Mr Zhong Xing (Mr Xing).

[2] Mr Wang is one of 10 individuals who received bankruptcy notices issued by Mr Xing. In each case, the request for the issue of a bankruptcy notice and the accompanying bankruptcy notice are in the same terms. The debt relied on in each case arises from the same judgment.

[3] Each of the 10 judgment debtors apply to set aside the bankruptcy notice. Mr Wang’s application was treated as an example, the outcome of which will determine the other nine applications as there is no suggestion of a material difference between them.

[4] In the nine other applications, a results judgment only will issue which will refer to this judgment as containing the reasons for the bankruptcy notice being set aside – that being the outcome advised to the parties at the conclusion of the hearing on 9 May 2023.

The judgment debt relied on by Mr Xing

[5] Mr Wang, along with the other nine judgment debtors, were purchasers of sections from a company called Green Land Investment Limited (Green Land). The purchasers sought specific performance of their agreements for sale and purchase with that claim resulting in a liability judgment, essentially in their favour, of Jagose J on 4 August 2022.1 That decision sets out in detail the history between Green Land, Mr Xing and others, with the judgment debtor.

[6] Green Land’s counterclaim is in respass as some of the purchasers had, notwithstanding that they had not settled, built homes on the sections and some were in fact living in those homes.

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

[7]The judgment on that counterclaim is dealt with in Li as follows:2

Last, on Green Land’s claim for trespass damages, necessarily founded on Green Land’s continued possession of the lots, the parties have agreed an annual $19,500 rate per lot. Mr Lowery has specified the periods for which such rates should apply to the trespassed lots; Mr Parmenter said in closing he accepted those calculations. I would award damages on this third counterclaim accordingly.

[8] The relief the purchasers may receive was subject to a remedies hearing on 1 May 2023. The outcome of that…

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 Xing v Wang

Details

AGLC: Xing v Wang [2023] NZHC 1273
Case: [2023] NZHC 1273
Decision Date: 26 May 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Zhong Xing sought to enforce a bankruptcy notice against Mengqui Wang, a judgment debtor, by applying for the notice to be issued. Wang opposed the application, arguing that Xing did not have the requisite standing to enforce the judgment upon which the bankruptcy notice was based. The court found that Xing had not demonstrated that he was entitled to enforce the judgment at the time he applied for the bankruptcy notice, rendering the notice a nullity and ordering it be set aside. The court held that an assignee of a debt must obtain leave from the court to obtain a bankruptcy notice, a requirement that was not met by Xing in this instance. As a result, the court set aside the bankruptcy notice and ordered Xing to pay costs to Wang and the other applicants.

Orders