Yang v DH and PM Ltd - [2019] NZHC 953

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000506

[2019] NZHC 953

BETWEEN
ZHE YANG and JACKSON ING WEI LAW

Plaintiffs

AND

DH and PM LTD First Defendant

QINGHUA MO and YU HUANG

Second Defendants

Hearing: 29 April 2019

Appearances:

I Hutcheson for Plaintiffs

G D Wiles and R Kaur for Defendants

Judgment:

2 May 2019

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 2 May 2019 at 10.00am
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Croftfield Law/I Hutcheson, Auckland DX Law Ltd/G D Wiles, Auckland

YANG v DH and PM LTD [2019] NZHC 953 [2 May 2019]

Introduction

[1] The plaintiffs, Zhe Yang (“Mr Yang”) and Jackson Ing Wei Law (“Mr Law”) have applied on notice for an interim mandatory injunction. They seek orders directing:

(a)the first defendant– DH and PM Ltd – to transfer title to a property at 47 Union Road, Howick, to them or their nominee, subject to them effecting repayment of an existing mortgage registered against the property;

(b)the second defendants – Ms Mo and Mr Huang – to transfer title to a property at 8 Taurima Avenue, Pt England, to them or their nominee, subject to them effecting repayment of an existing mortgage registered against the property, and subject to the registration of a caveat following registration of the transfer, such caveat to remain in place pending determination of such interest as Ms Mo and Mr Huang may have in the property; and

(c)Ms Mo and Mr Huang to desist from contacting or attempting to make contact with contractors, suppliers and commercial entities involved in the development projects at the Union Road and Taurima Avenue properties (including DBR Property Financiers – a prospective mortgagee) pending further order of the Court.

[2]The application is opposed by Ms Mo and Mr Huang.

[3] In the course of the hearing before me, there was some movement as between the parties in relation to the Taurima Avenue property. Messrs Yang and Law indicated that if they can obtain title to the property, they are prepared to offer a second mortgage over the property, to give Ms Mo and Mr Huang better security for the interest they claim in the property, until such time as that claim can be resolved. They were not however in a position to formalise that offer; it will need the consent of any first mortgagee and a priority figure for any first mortgage will have to be agreed. Mr Hutcheson however requested that I should adjourn the hearing in relation to the Taurima Avenue property, so that his clients can pursue this option. They also wish to

explore the possibility of a mediation. Mr Wiles, appearing for Ms Mo and Mr Huang, agreed that an adjournment is appropriate but requested that I should nevertheless deal with the application insofar as it relates to the Union Road property. Mr Hutcheson agreed that this is appropriate.

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.

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Details

Case: [2019] NZHC 953
Decision Date: 2 May 2019

CaseChat Overview and Summary

In the case of Yang v DH and PM Ltd, the plaintiffs, Zhe Yang and Jackson Ing Wei Law, sought an interim mandatory injunction against the defendants, DH and PM Ltd (the first defendant) and Qinghua Mo and Yu Huang (the second defendants). The plaintiffs aimed to compel the defendants to transfer the title of two properties to them or their nominee, subject to the repayment of existing mortgages, and to restrain the second defendants from contacting contractors and suppliers involved in the development projects. The court considered the application's merits, focusing on the Union Road property and the Taurima Avenue property.

The legal issues revolved around whether the plaintiffs had established a serious question to be tried, if the balance of convenience favoured the plaintiffs, and the overall justice of the case. The court found that the plaintiffs had not provided sufficiently precise evidence to justify the conclusion that they would likely succeed in their claims at trial. The balance of convenience did not favour the plaintiffs either, as granting the injunction could adversely affect the defendants' rights. Furthermore, the court noted that damages would likely be an adequate remedy if the plaintiffs ultimately succeeded at trial.

As a result, the court declined the plaintiffs' application for an interim mandatory injunction in relation to the Union Road property. The application concerning the Taurima Avenue development and the orders requiring the second defendants to desist from contacting contractors and suppliers was adjourned for further hearing. The defendants, as the successful parties, were entitled to their costs and reasonable disbursements, which would be apportioned between the application in relation to the Union Road property and the balance of the application.

Orders