Yang v Chen HC Auckland CIV-2007-404-1751
[2011] NZHC 122
•17 February 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2007-404-1751
BETWEEN LIMIN YANG AND LIU (JASMINE) YANG
Plaintiffs
ANDPAUL (YU PO) CHEN Defendant
CIV-2008-404-4287
AND BETWEEN DACHA INTERNATIONAL LIMITED First Plaintiff
ANDROTORUA INTERNATIONAL VILLAS LIMITED
Second Plaintiff
ANDTOP INTERNATIONAL LIMITED Third Plaintiff
ANDPAUL (YU PO) CHEN First Defendant
ANDHEARD PARK LIMITED Second Defendant
ANDCHOON KHIAW CHIN Third Defendant
Hearing: On the papers
Judgment: 17 February 2011
JUDGMENT No. 3 OF ALLAN J
Solicitors:
Hesketh Henry, Auckland Patrick McPherson [email protected]
Paul Chen [email protected]
Queen City Law, Auckland [email protected]
LIMIN YANG AND LIU (JASMINE) YANG V PAUL (YU PO) CHEN HC AK CIV-2007-404-1751 17
February 2011
R B Hucker [email protected]
[1] On 5 October 2010 I delivered a judgment in this proceeding. I held that Limin Yang and Jasmine Liu were the shareholders of the present plaintiff companies, and that they were entitled to be registered as shareholders in the register of members of the companies concerned. I also gave detailed directions concerning the future conduct of the proceeding.
[2] In terms of those directions, the plaintiffs (now controlled by Limin Yang and
Jasmine Liu), have filed an amended statement of claim.
[3] Choon Khiaw Chin has throughout been named as third defendant. She did not file a statement of defence but on the first morning of the substantive trial she appeared under summons from the then plaintiffs. At that time she was released and has not been required to take any step in the proceeding since.
[4] I directed that a copy of the recently amended statement of claim be served on the third defendant’s solicitors and that such service would be deemed to be good service. Such service has been effected. Despite several communications from the plaintiffs’ solicitors to the third defendant’s solicitors, there has been no indication from the latter that the third defendant proposes to take any step in the proceeding. The time for filing a statement of defence has expired.
[5] The third defendant is registered as the proprietor of properties in Rotorua in which the present plaintiffs claim both a legal and beneficial interest. In their amended statement of claim they seek orders transferring the properties concerned to the second plaintiff.
[6] No step having been taken by the third defendant, I am satisfied that it is appropriate, on Mr McPherson’s present application, to make an order granting possession of those properties to Rotorua International Villas Limited. The
properties concerned are those situated at 9 Froude Street, Rotorua, 10 Meade Street, Rotorua, and 12 Meade Street, Rotorua.
[7] Rotorua International Villas Ltd is accordingly entitled to judgment for possession in terms of the judgment by default documents already lodged in court.
[8] The second plaintiff also seeks an order vesting title to the properties concerned in it, to the exclusion of the third defendant. During the long trial of this proceeding I heard evidence which satisfies me that the third defendant is not entitled to maintain an interest in the properties concerned. I am satisfied also, in the light of the evidence given at trial, that it is appropriate to vest the properties in the second plaintiff. There will be an order accordingly.
[9] The third defendant held the properties in effect as the bare nominee of Mr and Mrs Chen. Mr Chen has not filed a statement of defence to the amended statement of claim. From the evidence Mr Chen gave at trial I am satisfied that his claim to an interest (through the third defendant) in the three Rotorua properties rested upon his contention that he was the true beneficial owner of the shares in Rotorua International Villas Ltd. I have held against him on that point.
[10] In the absence of a statement of defence to the amended statement of claim I am satisfied that he is not entitled to be heard further on the present application for a vesting order.
[11] Questions of costs between the plaintiffs and the third defendant are reserved.
C J Allan J
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