Zhang v Meng - [2022] NZHC 2641

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-508

[2022] NZHC 2641

UNDER the High Court Rules 2016

BETWEEN

JUNHUI ZHANG and WEI XU

Plaintiffs

AND

XING MENG and HUIMIN GUAN

Defendants

Hearing: 12 October 2022

Appearances:

CL Holland for the Plaintiffs S Maloney for the Defendants

Judgment:

12 October 2022

JUDGMENT OF WOOLFORD J

(Application to rescind order for joinder)

Solicitors: Righteous Law (C L Holland), Auckland
Heritage Law (D Liu), Auckland

ZHANG v MENG [2022] NZHC 2641 [12 October 2022]

[1] This interlocutory hearing concerns the interpretation of the phrase “on the papers” as it was used by Associate Judge Andrew in a minute dated 6 May 2022 (first minute) in the present proceeding. In that minute, Associate Judge Andrew directed that:

(a)The plaintiff is to file and serve, by 20 May 2022, either:

(i)An amended statement of defence and counterclaim without additional parties; and/or

(ii)A formal application for leave to join the additional parties.

(b)The defendants are to file and serve their statement of defence to any counterclaim or notice of opposition (as the case may be) by 3 June 2022;

(c)The Court will then determine any application for leave to join additional parties on the papers.

[2] On 20 May 2022, the plaintiffs filed an interlocutory application to add parties, a reasonably lengthy affidavit from one of the plaintiffs, Wei Xu, and a five page memorandum of counsel.

[3] In response, the defendants filed a notice of opposition, dated 3 June 2022, together with a short affidavit from one of the defendants, Huimin Guan, dated 7 June 2022. The defendants did not file a memorandum or submissions.

[4] On 12 July 2022, Associate Judge Andrew issued a second minute in which he granted the plaintiffs’ application to add parties. He stated:

[2] I am satisfied that the grounds for the orders sought have been made out (r 4.56). The presence before the Court by these additional parties may be necessary to adjudicate on and settle all questions involved in the proceedings. There may also be some efficiency in resolving all outstanding disputes between the parties and there is arguably a close connection between the proposed counterclaims and the purchase of the property and the payment of the deposit, the essential matters at dispute in the main proceedings.

[5] Two days later, on 14 July 2022, counsel for the defendants filed a memorandum seeking recall of the second minute granting joinder of the parties on the basis that the first minute did not refer to the filing of submissions. The defendants submit that although the Court said it would determine the application on the papers, that was not an order made by consent. No submissions were filed by the defence because none were directed by the Court. Without further reference to the parties, the Court ruled in favour of the plaintiffs on the basis that the plaintiffs had made out the grounds of their application. 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 Zhang v Meng

Details

AGLC: Zhang v Meng [2022] NZHC 2641
Case: [2022] NZHC 2641
Decision Date: 12 October 2022

CaseChat Overview and Summary

The case of Zhang v Meng involves an interlocutory application to rescind an order for joinder. The plaintiffs, Junhui Zhang and Wei Xu, sought to add additional parties to the proceeding, while the defendants, Xing Meng and Huimin Guan, opposed the application. The case was heard by Woolford J on 12 October 2022. The primary legal issue before the court was whether the term "on the papers" in a previous minute sufficiently informed the defendants that any application and opposition filed would substitute the requirement for a hearing and submissions. The court found that the issues were not fully argued because the order was made on the papers without a hearing or submissions from the defendants. The court concluded that the joinder order was made without a hearing and that the matter could benefit from further and more extensive argument in consideration of the issues. The application for extension and rescission was granted, and orders were made to advance the plaintiffs' application for joinder to a hearing. The plaintiffs' submissions and authorities in support of the application for joinder are to be filed and served 10 working days after the hearing date, and the defendants' submissions and authorities in opposition are to be filed and served 10 working days after the plaintiffs' submissions. The application for joinder is to be determined on the papers only with express consent of both parties.

The court's decision highlights the importance of ensuring that all parties understand the requirements for making and opposing an interlocutory application. The court found that the defendants were not adequately informed that they were required to file submissions in opposition to the plaintiffs' application for joinder. The court also emphasised the importance of fully arguing the issues before making an order, particularly where there are significant legal and factual hurdles that must be overcome. The decision serves as a reminder to lawyers to carefully consider the requirements for making and opposing interlocutory applications and to ensure that all parties are adequately informed of those requirements.

Orders