Yang v Bushpark Property Development Limited

[2013] NZHC 1038

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2008-404-4823 [2013] NZHC 1038

UNDER  the Declaratory Judgments Act 1908

BETWEEN  PEI CHI YANG, HSIU MEI SU AND LK TRUSTEE (NO 19) LIMITED

Plaintiffs

ANDBUSHPARK PROPERTY DEVELOPMENT LIMITED Defendant

Hearing:         9 May 2013

Counsel:         GM Illingworth QC for plaintiffs

NH Malarao for defendant

Judgment:      9 May 2013

(ORAL) INTERIM JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application for leave to continue proceeding]

Solicitors:           Loo & Koo, PO Box 99 687, Auckland 1140

Meredith Connell, PO Box 2213, Auckland 1140

YANG V BUSHPARK PROPERTY DEVELOPMENT LIMITED HC AK CIV-2008-404-4823 [9 May 2013]

[1]      This is the second judgment that I have given as an interim judgment in relation to the plaintiffs’ application for leave to continue this proceeding.  It should be read in conjunction with my judgment of 30 October 2012.  For that reason, the matters referred to in that judgment are now not repeated.

[2]      Counsel have helpfully agreed on a number of positions which justify the further adjournment of this application pending the determination of an appeal to the Court of Appeal.

[3]      The positions reached by counsel I now summarise:

(a)      The  defendant  (by  its  liquidators)  accepts  the  plaintiffs’ valuation evidence on the subject property at $3,200,000.  The significance of this is that there would not be any real contest from an evidential point of view if leave was given and the matter proceeded to trial;

(b)The real issue raised by the defendant (by its liquidators) is whether the plaintiffs are now prevented from pursuing the current proceeding because to do so is alleged to be an abuse of process.  The abuse of process is alleged to be the failure to plead and advance a set-off defence in the proceeding CIV-2011-404-1981 and determined by Collins J in a judgment dated 14 May 2012.  In addition to this issue, there are issues raised in Mr Malarao’s memorandum dated 2 May

2013;

(c)      The defendant (by its liquidators) confirms that it will not enforce the judgment   issued   by   Collins J   on   14 May   2012   prior   to   the determination of the appeal from that judgment and determination of this application or some earlier order of this court;

(d)The defendant (by its liquidators) will not plead delay in the disposal of this application for the period pending the determination of the appeal from the judgment of Collins J.

[4]      Taking these factors into account, I consider the proper course, without opposition from counsel, is to adjourn this application to a date to be fixed by the Registrar and for call as soon as possible following the release of the decision of the Court of Appeal in relation to Collins J’s judgment.

[5]      I rule accordingly.

JA Faire

Associate Judge