Yu v Xian - [2019] NZHC 787

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2724

[2019] NZHC 787

IN THE MATTER OF Demand for Repayment of Outstanding Deposit and Transferred Funds

BETWEEN

QING YU

First Plaintiff

XINXI XIAN
Second Plaintiff

AND

LIZHU XIAN

First Defendant

WEIQIANG PAN

Second Defendant

Hearing: 3 April 2019

Appearances:

Plaintiffs in person

C R Andrews and K T O’Halloran for Defendants

Judgment:

11 April 2019

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 11 April 2019 at 11 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors: McVeagh Fleming, Auckland Copy for: Plaintiffs
Integritas Law Firm Limited, Auckland

YU v XIAN [2019] NZHC 787 [11 April 2019]

[1] The defendants, Ms Xian and Mr Pan, apply to set aside a freezing order made without notice on 13 February 2019.1

[2]The grounds on which the application is made are that:

(a)the applicants, ie the plaintiffs, failed to make full and frank disclosure of all relevant matters to the Court when they sought the order; and

(b)there is no risk of disposal of assets.

[3] The order restrains the defendants from disposing of, dealing with or diminishing the value of properties situated at 22 Jezero Drive, Massey and 157 and 451B Old North Road, Kumeu (“Jezero”, “157” and “451B”). I extended the operation of the freezing order at the conclusion of the hearing before me, pending further order of the Court.

Background

[4] The plaintiffs, Ms Yu and Mr Xian, commenced this proceeding on 11 December 2018. They contend that the defendants are indebted to them in the sum of approximately $758,900 and seek orders for repayment of that sum, plus interest and costs. The defendants deny any indebtedness to the plaintiffs.

[5] The plaintiffs applied for the freezing order on 12 February 2019. As I have said, one of the grounds on which the defendants have applied to set aside is a failure to make full and frank disclosure. That criticism is made as regards two matters. The first is that the plaintiffs should not have applied without notice as they well knew that the defendants denied the plaintiffs’ claim and had instructed McVeagh Fleming to act for them. Indeed, the plaintiffs had served that firm with their proceedings pursuant to an order for substituted service. The second is that the plaintiffs did not give the Court a full account of proceedings presently before the Family Court.

1 Yu v Xian (Interlocutory Application Without Notice for Interim Freezing Order) HC Auckland CIV-2018-404-2724, 13 February 2019 per Toogood J.

[6] I shall address the latter criticism below but it is enough to say at this point that the plaintiffs and their then counsel, Mr Paul Pang of Integritas Law Firm Limited, should not have applied for the freezing order without notice. Nothing in the circumstances warranted a without notice application and, to compound matters, neither Mr Pang nor the plaintiffs informed the Court…

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 Yu v Xian

Details

AGLC: Yu v Xian [2019] NZHC 787
Case: [2019] NZHC 787
Decision Date: 11 April 2019

CaseChat Overview and Summary

In Yu v Xian, the plaintiffs, Qing Yu and Xinxi Xian, sought to recover money they claimed was owed to them by the defendants, Lizhu Xian and Weiqiang Pan. The plaintiffs sought a freezing order to prevent the defendants from disposing of their assets. The defendants applied to set aside the freezing order, arguing that the plaintiffs had not made full and frank disclosure of all relevant matters and that there was no risk of disposal of assets.

The court found that the plaintiffs had not made full and frank disclosure as they had applied for the freezing order without notice and had not informed the court that the defendants were represented by McVeagh Fleming. The court also found that there was a risk of disposal of assets as the defendants had placed one of their properties on the market for sale and had transferred substantial funds to China to purchase a property there. The court therefore dismissed the defendants' application to set aside the freezing order but ordered that the terms of the order be restricted to the sum the plaintiffs claimed plus interest and costs.

The court ordered that the parties file a joint memorandum or, absent agreement, memoranda setting out the directions sought by a specified date and that the matter be called in the Duty Judge list on a specified date. The court made no order as to costs as the plaintiffs were unrepresented.

Orders