Zhao v Zheng
[2025] NZHC 2569
•15 September 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-1109
[2025] NZHC 2569
IN THE MATTER OF a breach of contract BETWEEN
TENG ZHAO
Plaintiff
AND
JING ZHENG
Defendant
Hearing: On the papers Counsel:
T Zhao, Plaintiff in Person
E St John and D Liu for the Defendant
Judgment:
15 September 2025
JUDGMENT OF ASSOCIATE JUDGE SUSSOCK
This judgment was delivered by me on 15 September 2025 at 10 am pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Heritage Law, Auckland O'Connell Chambers, Auckland
TENG ZHAO v JING ZHENG [2025] NZHC 2569 [15 September 2025]
Contents
Introduction [1]
Relevant legal principles [13]
Discovery obligations [13]
Strike out for discovery breaches [14]
Issues [20]
Has there been a deliberate and continuing refusal to comply with discovery
obligations? [21]
Discovery chronology [21]
Does Ms Zhao’s default make a fair trial possible? [104]
If so, is it just to strike out the proceeding? [109]
Conclusion [113]
Application to vary inspection orders [115]
Should indemnity costs be awarded? [116]
Contempt of Court [118]
Result [119]
Costs [121]
Introduction
[1] The defendant seeks an order striking out the plaintiff’s claim on the grounds that she has deliberately failed to comply with discovery orders made during the course of this proceeding, including for inspection of her iPhone. The plaintiff claims her non-compliance was inadvertent and instead seeks an order discharging the inspection order made by Associate Judge Paulsen on 4 September 2024.
[2] The proceeding was filed following my 28 April 2023 determination of the plaintiff’s application to sustain a caveat over the defendant’s property in Taupo, Zhao v Zheng (Caveat Decision).1 The caveat relied on a handwritten loan agreement signed in front of a Justice of the Peace on 17 January 2018 (Repayment Agreement). The agreement recorded that the defendant promised to pay the plaintiff $200,000 within five years and:
[i]f payment has failed within this range of time, [the defendant] should sell the property of 198 Taharepa Road, Taupo. Certificate of title as attached.
[3] I granted leave to Ms Zhao to lodge a second caveat claiming an equitable charge on condition that she file and serve any claim against the defendant within one month and pursue that claim with due diligence. This led to the present proceeding.
1 Zhao v Zheng [2023] NZHC 983.
[4] The plaintiff claims that during the course of a joint business venture with the defendant, she advanced funds totalling $128,851.93 to pay for company related costs and that between 2015 and 2018 the defendant received “benefits of goods from the company with an aggregate value of at least $72,000”. The plaintiff says she discovered in about January 2018 that the defendant had used the funds for his personal benefit rather than for the business. After confronting the defendant, the plaintiff says he promised to repay the misappropriated funds within 5 years, and that this was recorded in the Repayment Agreement referred to above.
[5] The defendant denies the claim and says the alleged advances were wages received from the plaintiff’s company, Corner Cone Limited, as evidenced by his bank statements showing recurring payments of $921.25 marked “Salary”. The defendant explains that, although there was no underlying debt, he signed the Repayment Agreement under duress after the plaintiff smashed his car windows, vandalised his Taupo property, and threatened to kill him and his daughter.
[6] In reply, the plaintiff denies any improper conduct on her part. Instead she contends the defendant apologised for misappropriation in three WeChat messages on 16 January 2018. In the Caveat Decision, I commented that these messages were “relatively vague” and that it was not clear the respondent was apologising in respect of the funds advanced.2
[7] The defendant has not had access to the WeChat messages during the relevant period since before the Caveat Proceeding as a result of losing his phone and disputed the authenticity of the WeChat messages relied on in the caveat proceeding.
[8] Discovery orders were first made in these substantive proceedings on 17 November 2023 with affidavits of documents to be filed by 8 December 2023.
[9] Almost two years later, WeChat messages on only very confined dates have been discovered by the plaintiff (including as a result of very limited inspection of her phone by an independent barrister) and not including the date of the Repayment Agreement. The defendant submits the majority of the withheld messages retrieved by
2 Zhao v Zheng, above n 1, at [22].
the independent barrister are highly relevant to the issues in litigation, as they support the defendant’s claim that the plaintiff was infatuated with him and became abusive after he rejected her romantic advances, which abuse resulted in him signing the Repayment Agreement under duress. Examples of fourteen of those messages are included in the evidence in support of this submission as discussed further below.
[10] The plaintiff’s evidence now is that she can no longer comply with the inspection orders made in September 2024 as she no longer has access to her WeChat messages. This is allegedly as a result of transferring them to a different phone just prior to inspection by the defendant’s solicitors, with that phone then stolen from her car. The plaintiff says the messages were accidentally deleted from her original phone in the transfer and so no further WeChat messages can be discovered.
[11] The defendant does not accept that the plaintiff no longer has access to the WeChat messages or that the messages were deleted by accident from her original phone. In any event, the defendant submits that the proceedings should be struck out because the plaintiff’s discovery defaults make a fair trial impossible.
[12] The plaintiff has filed a cross application for variation of the inspection orders. I consider whether the statement of claim ought to be struck out first as that will determine the application to discharge the inspection orders.
Relevant legal principles
Discovery obligations
[13] A standard discovery order, as was made here, requires a party to produce all documents that are or have been in that party’s control and that are relied on by that party or adversely affect that party’s case, or that support or adversely affect another party’s case.3 This obligation extends to:
(a)taking all reasonable steps to preserve documents that are, or are reasonably likely to be, discoverable in the proceeding;4
3 High Court Rules 2016, r 8.7.
4 Rule 8.3.
(b)making reasonable searches for documents within the scope of the discovery order;5 and
(c)filing an affidavit of documents that complies with rr 8.15 and 8.16, including listing all documents required to be discovered.
Strike out for discovery breaches
[14] Rule 8.33 provides that a discovery order or other orders made under Part 8 Subpart 1 (including an inspection order) may be enforced under the Contempt of Court Act 2019. However, the Court of Appeal held in Kent Sing Trading Co Ltd v JNJ Holdings Ltd:6
Ordinarily… the appropriate sanction … is a strike-out (if the threshold for that is met), together with an adverse costs order.
[15] Rule 7.48 relates to the enforcement of interlocutory orders and provides the Court with broad powers to make any order that the Judge thinks just, including striking out a pleading in whole or part for failure to comply with a discovery order.7 However, striking out a proceeding for failure to comply with a interlocutory order is a serious step which should only be taken when necessary to do justice to the other interests at stake.8
[16] Before doing so in the discovery context, the Court of Appeal held in Kent Sing Trading that there is required to be either:9
(a)a deliberate and continuing refusal to comply with discovery obligations; or
(b)the default makes a fair trial impossible.
5 High Court Rules, r 8.14.
6 Kent Sing Trading Co Ltd v JNJ Holdings Ltd [2019] NZCA 388 at [45].
7 Kidd v Van Heeren [2019 NZCA 275 (2019) 24 PRNZ 596 at [42].
8 Energy Securities CP v Vector Limited [2018] NZHC 2271 at [5].
9 Kent Sing Trading Co Ltd v JNJ Holdings Ltd, above n 6, at [44] to [46].
[17] In Chief Executive of the Department of Corrections v Fujitsu New Zealand Ltd, this Court declined to strike out a third party’s defence despite discovery breaches, because documents had been deleted in the ordinary course of business rather than by deliberate default. In addition, the deleted material formed only a small part of the evidential material relevant for trial and the Court considered drawing adverse inferences and cost consequences were more appropriate remedies.10
[18] By contrast, in Commonwealth Reserves v Chodar, Glazebrook J struck out the third defendant’s defence after repeated failures to comply with, and “blatant disregard for”, discovery orders in circumstances where discovery was necessary for the plaintiff to prove its claim.11 Her Honour referred to Hopman v Peka where Cartwright J held:12
While the Courts will be very reluctant to strike out defences, except on their merits, there will be occasions when that step is justified where there is clear evidence of excessive and unreasonable delay in complying with requests and orders for discovery and inspection. Such evidence may include the history of interlocutory steps, orders and directions and the actions of counsel to obtain discovery or inspection informally.
[19] Similarly, in Established Investments Ltd (in liq) v Armitage, the Court struck out the defendant’s defence due to repeated non-compliance with discovery obligations which, among other consequences, led to vacation of two trial dates.13 Andrews J considered whether the defendant’s default could be addressed by an order short of strike-out but concluded that it could not, stating “[t]he defendant’s response to date to orders of the Court… gives me no confidence that he would comply with a further order”.14
Issues
[20]The issues to be determined are therefore:
(a)Has there been a deliberate and continuing refusal to comply with discovery obligations by the plaintiff?
10 Chief Executive of the Department of Corrections v Fujitsu New Zealand Ltd [2023] NZHC 1900 at [21].
11 Commonwealth Reserves v Chodar HC Auckland CP73-SW/00, 18 July 2000.
12 Hopman v Peka HC Auckland, CP 132/94, 24 April 1998.
13 Established Investments Ltd (in liq) v Armitage HC Auckland CIV-2004-404-4084, 2 April 2007.
14 At [24].
(b)Does the plaintiff’s default make a fair trial impossible?
(c)If so, is it just to strike out the proceedings?
Has there been a deliberate and continuing refusal to comply with discovery obligations?
Discovery chronology
[21]As set out above, discovery was directed to be completed by 8 December 2023.
[22] The plaintiff, Ms Zhao, filed her original affidavit of documents on 7 December 2023 disclosing screenshots of only 51 WeChat Messages, sent and received on two isolated dates, 8 November 2016 and 16 January 2018.
[23] The plaintiff is now representing herself but her counsel at that time recorded in the memorandum leading to the discovery orders that the first key issue was whether the defendant, Mr Zheng, had signed the Repayment Agreement under duress. WeChat messages between the plaintiff and defendant were therefore always going to be relevant.
[24] On 8 December 2023, the defendant’s solicitors asked to inspect the plaintiff’s phone, at that stage disputing the authenticity of the WeChat messages discovered by the plaintiff.
[25] In an effort to stave off the defendant’s request, Ms Zhao produced an affidavit from a software engineer, Quinyang Gong, to say that the WeChat messages were authentic. As part of that affidavit, for reasons that have not been explained, the expert produced screenshots of 8 additional WeChat messages between the plaintiff and the defendant on 24 April 2015.
[26] The defendant did not accept this as an alternative to inspection. After extended negotiations between counsel over five months the plaintiff finally agreed to inspection of her phone in May 2024 but only on condition that:
(a)the phone was to be inspected solely by an independent lawyer;
(b)the inspection was to be limited to WeChat messages sent and received by her on three dates;
(i)24 April 2015;
(ii)8 November 2016;
(iii)16 January 2018; and
(c)the defendant would bear the cost.
[27] The independent barrister, Lion Yang, swore an affidavit on 20 May 2024 revealing that there were 307 additional WeChat messages that had not been discovered by the plaintiff on the three nominated dates alone.
[28] On 22 May 2024, the defendant’s solicitors wrote to the solicitors acting for the plaintiff at that time asserting that the messages attached to Mr Yang’s affidavit confirmed that the defendant was coerced into agreeing to a debt that was never owed. The defendant’s solicitors contended the messages included disturbing threats and spoke directly to the steps Mr Zheng was forced to take during and after those exchanges, including filing two police reports regarding the plaintiff’s behaviour. In addition, the solicitors said:
It is clear that following determination of the relationship, Ms Zhao, out of spite, unilaterally treated all capital she introduced into The Corner Cone Limited as personal loans to Mr Zheng. She then coerced Mr Zheng into agreeing that a debt was owed to her, unless he agreed to evict his wife and live in an exclusive romantic relationship with her. The messages reveal the extent of their personal interactions, and the level of abuse and vitriol Mr Zheng has had to endure from Ms Zhao.
[29]The letter continued:
Additionally and equally as concerning, it is clear that Ms Zhao has failed entirely in her discovery obligations. In light of the messages adduced by Mr Yang, the extent of Ms Zhao’s discovery of contemporaneous communications (prior to Mr Yang’s affidavit) has clearly been, at its highest, selective.
[30] The defendant’s solicitors said it was clear from Mr Yang’s affidavit that Ms Zhao’s WeChat account contained numerous other messages between the parties
which were highly relevant and that unless the proceedings were discontinued immediately, they would require Ms Zhao to swear a supplementary affidavit of documents including all WeChat messages between them.
[31] The solicitors for the plaintiff responded on the same day asking for the date and time stamp of the WeChat messages “that suggest that [Ms Zhao] coerced Mr Zheng into signing the agreement unless he agreed to evict his wife and live in an exclusive romantic relationship with her”.
[32] The defendant’s solicitors replied setting out 14 of the messages from Ms Zhao retrieved by the independent barrister, in Chinese and in English, with the English quoted below:
1. 16/01/2018 at 15:58:
Just a reminder: you are the one responsible for the current situation. I'm saving you, and you should be grateful. If you dare to show me attitude, I won't put up with it anymore. Give that bitch a notice and tell her to move out. I'm moving in.
2. 16/01/2018 – between 15:58 and 16.03:
Alternatively, pay me the money in one go, and we will have nothing more to do with each other.
3. 16/01/2018 – between 16.04 and 16:09:
I don't want to see you anymore, so just pay back my money. Seeing you makes me upset.
4. 16/01/2018 – between 16.04 and 16:09:
I once gave you the best, but you didn't cherish it. So now, it's all gone.
5. 16/01/2018 at 16:09:
If you service the public toilets* more, they** might come up with funds for you
* the term "public toilets" is used throughout and in this context it appears to be a derogatory reference to Mr Zheng's girlfriends
** "they" in the original Chinese text was in female form.
6. 16/01/2018 – between 16.19 and 16:23:
I don't want to see you anymore. I told you I only want a husband.
7. 16/01/2018 at 16.23:
It's like when I'm hungry and need food, but you insist on giving me clothes. Although it's not bad, it's not what I need, so there's no need to invest anymore.
8. 16/01/2018 – between 16.23 and 16:28:
Find someone else. Pay me back, and I will Look for the person I need.
9. 16/01/2018 – between 16.23 and 16:28:
You make me sick everyday by constantly reminding me that I Loved the wrong person, and with all your messy affairs.
10. 16/01/2018 at 16:28:
You and those public toilets are too dirty.
11. 16/01/2018 – between 16.28 and 16:31:
You have already lied to me in front of that bitch, and that has caused me immense pain. Today, when I said I wanted to teach her a lesson, you even spoke up for her.
12. 16/01/2018 – between 16.31 and 16:38:
You have betrayed me and didn't consider me when you embarrassed me. It's not just once. Don't bring your filth to me anymore. Pay back the money and leave. I only need a husband.
13. 16/01/2018 at 16.42:
The place where you and that bitch live is too filthy; [I'd] rather not go. You should have anticipated this outcome the moment you told me your first lie. Didn't that bitch lend you her car? Is there any difference between getting in her car and going to the toilet? Go and discuss it with all your 'toilets'. I just want my money back. You have 100 minutes left.
14. 16/01/2018 at 17.13:
Either you satisfy my every need, or you pay the money and leave. There is no middle ground. You are not allowed to have any female* contacts stored in your phone. Otherwise, it's a violation. You understand
* the word "female" in the original Chinese text was the Chinese character used to refer to a female animal.
[33] On 21 June 2024, solicitors for the defendant wrote again to the solicitors for the plaintiff saying that they had not yet had a substantive response and asking the
plaintiff to provide a supplementary affidavit including all WeChat messages between the parties.
[34] The plaintiff’s solicitors responded on 25 June 2024, after being advised that the defendant was about to file an application for further and better discovery, saying that in principle Ms Zhao was willing to provide her phone to be inspected by the independent barrister at the defendant’s cost.
[35] The defendant did not accept the plaintiff’s proposal as the cost of the inspection was prohibitive (the cost of the earlier inspection of three days’ worth of WeChat messages came to $3,954.85) and so filed an application for further and better discovery on 26 June 2025.
[36] By letter dated 27 June 2024, the plaintiff’s solicitors then asserted that the plaintiff had already complied with her discovery obligations, and that there was nothing further for her to discover because there was “no evidence which suggests that the parties were involved in a romantic relationship”.
[37] The additional messages discovered and referred to as part 1 were dated 21 February to 8 April 2015 for part 2 on 8 April 2016 and for part 3 on 9 June 2017. None were therefore on the date of the Repayment Agreement on 17 January 2017, despite there being approximately 133 WeChat messages between the parties on 16 January 2017.
[38] The solicitors again advised that the plaintiff was willing to provide her phone for inspection, on condition that the inspection was conducted by the same independent barrister, that it was at the defendant’s cost and that the discovery application was withdrawn with no issue as to costs. The defendant again did not accept the plaintiff’s proposal as the cost of the inspection was prohibitive and because he had already incurred substantial costs in pursuing his discovery application.
[39] On 27 July 2025, the plaintiff filed a notice of opposition to the further and better discovery application on the grounds:
(a)A supplementary affidavit of documents had been filed discovering further WeChat messages between her and the defendant which “prove that the parties were never involved in a romantic relationship”, and that that there were no further documents for her to discover.
(b)In the alternative, it would be “too onerous” for her to discover further WeChat messages because, in order to produce those messages, she would need to take hundreds of screenshots and instead, the defendant should engage Mr Yang to re-inspect her phone at his sole cost, which was a “reasonable and cost effective solution.”
[40] In a letter sent on the same day, the plaintiff’s solicitors repeat that there is no evidence suggesting the parties were involved in a romantic relationship and that this interpretation takes Ms Zhao’s WeChat messages out of context. I note that Ms Zhao’s solicitors did not dispute the translations of the messages above or the asterisked explanations, only that they were taken out of context.
[41] Ms Zhao’s solicitors then explained that the additional WeChat messages discovered in their supplementary affidavit show that:
(a)Mr Zheng was interested in pursuing Ms Zhao’s daughter romantically, and Ms Zhao wanted them to get together because Ms Zhao had thought Mr Zheng would be a good husband for her daughter (refer to Part 1 of the Additional WeChat Messages);
(b)Ms Zhao, upon her daughter’s rejection of Mr Zheng’s advances, encouraged Mr Zheng to pursue other women (refer to Part 2 of the Additional WeChat Messages); and
(c)when Ms Zhao was considering to find a partner for herself, she sought advance from Mr Zheng regarding how to pray to Buddha so she can find a romantic partner (refer to Part 3 of the Additional WeChat Messages). Therefore, Ms Zhao never had a romantic interest in Mr Zheng,
[42] The additional messages discovered and referred to as Part 1 were dated 21 February to 8 April 2015, for Part 2 on 8 April 2016 and for Part 3 on 9 June 2017. None were therefore on the day of the Repayment Agreement, 17 January 2018, or in close proximity despite there being approximately 133 WeChat messages between the parties on 16 January 2018.
[43] Given the impasse, the discovery application was heard by Associate Judge Paulsen on 4 September 2024. Consent orders were reached following the orders required the plaintiff to deliver up her phone within 14 days to the defendant’s solicitors and for the plaintiff to provide her password and any other necessary means of access for 12 hours.
[44] On the morning of 17 September 2024 (the day prior to the scheduled inspection), the defendant’s solicitors asked the plaintiff’s solicitors to remind the plaintiff of the phone inspection scheduled on 18 September 2024, and to confirm the make and model of the plaintiff’s phone.
[45] The plaintiff’s solicitors advised at 1:18pm that the plaintiff’s phone was an iPhone 8 and confirmed that the plaintiff would deliver her phone at 9:00am the following day.
[46] Three hours later, at 4:24 pm, the plaintiff’s solicitors advised that they had been instructed that the plaintiff’s car had been broken into on 7 September 2024 (10 days prior) and her phone had been taken so the plaintiff was unable to deliver her phone the following day.
[47] On 19 September 2024, the defendant’s solicitors required the plaintiff to file an application to vary the inspection orders accompanied by affidavit evidence explaining the circumstances of the alleged theft, why it was not disclosed immediately and what steps, if any, had been taken by the plaintiff to recover the phone or otherwise to preserve evidence relevant to the Court’s ordered inspection.
[48] Counsel for the plaintiff filed a memorandum dated 1 October 2025 together with an affidavit of the same date by Ms Zhao, deposing “I had left my phone in the car” when the car was borrowed by her daughter on 7 September 2024, and that the car was broken into overnight and “some of my belongings, including my phone, was stolen.” The affidavit attached a police report recording that an “Attempted unlawful taking of motor vehicle” had been reported as taking place on 8 September but with no express reference to the phone, or other belongings, having been taken.
[49] By memorandum to the Court on 9 October 2024, the defendant requested directions that the plaintiff substantiate her evidence by providing a screenshot of her “Find My iPhone” app to confirm the last known location and date and time of activation of her allegedly stolen phone.
[50] On 14 October 2024 counsel for the plaintiff informed the Court by memorandum that the plaintiff could not provide any “Find My iPhone” verification because “the Find My iPhone app was not activated on her phone prior to it being stolen.”
[51] An expert for the defendant, Mr Xuanyi Li, filed an affidavit on the same day deposing that the “Find My iPhone” feature is automatically enabled when a user signs in to an iPhone with an Apple ID, and that it would not be possible for the plaintiff to download any applications, including the WeChat application, if she did not log in to her Apple ID on the phone.
[52] A minute was issued on 16 October 2024 by Associate Judge Paulsen following a telephone conference, directing applications to be filed as he considered it was not appropriate to conduct the litigation by exchange of memoranda.
[53] Cross applications were filed on 31 October 2024, on behalf of the plaintiff seeking a discharge of the inspection order and on behalf of the defendant seeking enforcement of the inspection order in reliance on r 7.48 of the High Court Rules.
[54]Ms Zhao deposed in the affidavit filed in support of her discharge application:
(a)“my current phone is an android which I use for my daily activities, and my old phone was an iPhone 8”;
(b)“there was no Apple ID linked to the iPhone” because she “logged out of the device a long time ago, and the iPhone did not contain a SIM card”; and
(c)she was “unable to transfer these messages to my current phone because I did not know how”.
[55] At a case management conference directed on 21 November 2024, it was noted that the screenshots taken of her phone during the earlier inspection by the independent barrister showed that it was connected to the 4G network which appeared to be inconsistent with her evidence that the phone did not have a SIM card. The minute issued on 22 November 2024 invited the plaintiff to “consider her position (including to avoid further costs’ consequences) before proceeding with her application to vary the inspection orders made by Associate Judge Paulsen” and included directions for the parties to confer and attempt to reach agreement in respect of provision of the further WeChat messages.15 If agreement could not be reached, the plaintiff was directed to file a memorandum by 26 November 2024 and the defendant by 28 November 2024 to allow further directions to be made.
[56] On 26 November 2024 the plaintiff filed a further affidavit, but no accompanying memorandum, deposing that there had been a miscommunication between the plaintiff and her solicitor regarding the iPhones and that she actually had two phones (an iPhone 5 and an iPhone 8). Ms Zhao deposed that she had not lost her original iPhone 5 but that all WeChat data on her iPhone 5 had been “automatically deleted” after she transferred them onto the iPhone 8 on 6 September 2024. The plaintiff offered to provide the iPhone 5 for inspection by the defendant’s lawyer.
[57] The defendant filed a memorandum on 29 November 2025 together with an affidavit from a further expert for the defendant, Mr Zhi Chen, giving evidence that:
The WeChat in-app chat history migration function does not delete the chat history from the original device. Instead, it creates a backup of the chat history on the new device that can then be imported into the WeChat app on the new device.
[58] In Mr Chen’s opinion, the only way for the chat history on the iPhone 5 to be deleted would be if Ms Zhao:
(a)manually deleted those messages; or
(b)uninstalled the WeChat app from the iPhone 5; or
15 Zhao v Zheng HC Auckland CIV-2023-404-1109, 22 November 2024 (Minute of Associate Judge Sussock) at [2]–[3].
(c)reset the iPhone 5 to factory settings.
[59] The memorandum filed on behalf of the defendant submitted that the plaintiff’s claim ought to be struck out under r 7.48(2)(a), an alternative included in the defendant’s application to enforce the interlocutory orders, on the grounds that the plaintiff had:
(a)deliberately failed to comply with the inspection order made by Associate Judge Paulsen on 4 September 2024;
(b)contrary to her obligation to preserve documents under r 8.3 of the High Court Rules, deleted discoverable documents central to the defendant’s defence;
(c)deliberately misled the Court as to the whereabouts of her phone and repeatedly perjured herself with the sole aim of obstructing the discovery process and preventing the defendant from accessing critical evidence necessary to establish his affirmative defence of duress;
(d)failed to comply with her discovery obligations deliberately and on a continuing basis (since December 2023); and/or
(e)the plaintiff’s actions have made it impossible for there to be a fair trial.
[60] On 2 December 2024, a notice of change of representation was filed confirming that the plaintiff was now acting for herself.
[61] On 5 December 2024, Ms Zhao filed a memorandum further explaining the background to her phone being stolen and opposing the application to strike out. The plaintiff submitted that the fact that the plaintiff no longer had access to the WeChat messages did not prejudice the defendant’s case because the defendant had already accessed her phone and taken “multiple screenshots”. Ms Zhao said she should not be blamed for the defendant no longer having access to WeChat messages for which the plaintiff said there was no evidence.
[62] A further telephone conference was convened on 7 February 2025 to make directions for the plaintiff’s application to vary the inspection orders and the defendant’s application to strike out. The parties consented to the Court treating the cross applications as oppositions to the other party’s application and for a decision to be made on the papers.16
[63] In accordance with directions to ensure the Court had all the evidence before it in affidavit form, Ms Zhao filed a further affidavit dated 11 February 2025 which I set out in full below:
1.I am the plaintiff in this proceeding.
2.My Iphone8, which hold all the WeChat messages was stolen and no longer available for inspection by the Defendant.
Details
3.My personal phone is an Iphone5.
4.My work phone, provided by my employer is a Samsung A03.
5.Because my lphone5 is quite old, can’t work properly and turns it off automatically from time to time, hence I use my work phone daily, but no personal apps allowed.
6.On 04 September 2024, my former Lawyer, Capstone Law informed me about the inspection of my WeChat messages requested by the Defendant on 18 September 2024.
7.As per suggestion from Capstone Law, I needed to back up the WeChat messages prior to the inspection.
8.I found an old Iphone 8, leftover from family, with WeChat app installed, but the I phone itself was not registered under anyone's name.
9.Because I would only use the IPhone 8 for backing up the messages, and I had never thought it would be stolen, hence I didn't think about to register it under my name or turn on the “find” function.
10.I could only manage to transfer the messages from my Iphone5 to the Iphone8 but couldn't back up on 05 September 2024.
11.I called some IT stores on 06 September 2024, looked for help to make back up copy of the WeChat messages. I was told just to bring the phone in.
16 Zhao v Zheng HC Auckland CIV-2023-404-1109, 7 February 2025 (Minute of Associate Judge Sussock).
12.I put the Iphone8 in my car, so I won't forget it when I go to an IT store late.
13.My daughter borrowed my car on 07 September 2024. She parked the car on a street that night.
14.On 08 September 2024, she found the car was broken in. The Police case reference number: 240908/6877.
15.I informed Capstone Law on Monday early morning, 09 September 2024, as attachment A.
16.I thought Capstone Law would take correct actions accordingly, because they responded me as “noted”.
17.I wasn't aware of the emails Capstone Law sent to Defendant's Lawyer on/ around 18 September 2024 regarding my attendance to the phone inspection.
18.I also clarified the situations of the 3 phones with Capstone Law, as attachment B.
19.I asked the Capstone Law to clarify the fact to the Court and the Defendant's Lawyers, but was told "that's not important ".
20.To avoid these situations happening again, I stopped using the Capstone Law on 02 December 2024.
21.I am representing myself currently.
[64] The email Ms Zhao annexed as Attachment A was an email from Ms Zhao on 9 September 2024 as follows:
Good morning Kenneth [former solicitor],
FYI, please use 021625014 as my contact number now.
My car was damaged over the weekend and I haven’t seen it since Saturday. Phone is unfound yet. Police case reference number: 240908/6877.
Thanks and have a good day!
[65] The email annexed as Attachment B was an email to her former solicitors on 26 September 2024 when they were preparing her first affidavit of 1 October 2024 after her phone had been stolen:
Hi Irene and Kenneth,
Just a bit additional information for you. You can decide if you want to include this in the document.
I didn’t forget my phone in the car.
My old phone is Iphone5, which is very old, and can’t back up anything, and doesn’t work at most of times.
Therefore, I got a spare phone, Iphone8, transferred WeChat from Iphone5 to Iphone8.
On 06/09, I booked an IT man to help to make back up the Iphone8 on the following Saturday 14/09/2024. I put the Iphone8 in my car, so I Didn’t need to remember taking it with me to the appointment.
My daughter borrowed my car on 07/09, and discovered the damage of the car on 08/09/24.
Thanks and best regards. [Ms Zhao]
[66] Following the filing of the affidavit and submissions I proceeded to determine the application on the papers. During consideration of the submissions and evidence filed, I directed a further conference on 12 May 2025 to hear further from the parties. As I explained to Ms Zhao and counsel for the defendant at the conference, and as set out in my 12 May 2025 minute following, I considered that it was clear from the evidence filed that Ms Zhao had failed to comply with her obligation to discover all relevant WeChat messages. However, the evidence provided at that stage did not explain why Capstone Law confirmed the phone Ms Zhao would provide for inspection was an iPhone 8 on 17 September 2024 when the iPhone 8 had apparently been stolen on 7 September 2024.
[67] Prior to determining whether Ms Zhao’s claim ought to be struck out, I therefore directed Ms Zhao to file a further affidavit:17
(a)setting out when and how Ms Zhao advised her solicitors that the device that would be provided on 18 September 2024 for inspection was an iPhone 8 rather than the original iPhone 5; and
(b)confirming what device Ms Zhao currently used to send and receive WeChat messages.
17 Zhao v Zheng HC Auckland CIV-203-404-1109, 12 May 2025 (Minute of Associate Judge Sussock) at [4].
[68] In addition, I made directions for Ms Zhao to provide her iPhone 5 to the defendant’s solicitors for inspection and encouraged Ms Zhao to instruct a new solicitor as she indicated she was in the process of doing.18
[69] The minute issued further recorded that Ms Zhao said during the conference that she did not currently send or receive WeChat messages but that she had purchased a new iPhone 13 for her daughter that Ms Zhao will use in the future.19
[70] Ms Zhao filed an affidavit dated 16 May 2025 in response to the directions above attaching the email dated 9 September 2024 that had been attached to her earlier affidavit in which she advised one of her former solicitors, Mr Kenneth Sun, to use a different telephone number to contact her. In addition, Ms Zhao attached an email from Ms Sugimoto who worked with Mr Sun, on 17 September 2024, the day before the scheduled inspection, asking Ms Zhao to let them know the make and model of her phone. The email chain annexed records that Ms Zhao simply responded:
Hi [Ms Sugimoto] iPhone 8
Thanks and best regards [Ms Zhao]
[71] Ms Zhao explains that she believed her lawyer, Mr Sun, “had known the whole situation of the phones, and he and/or his team was dealing with the defendant’s lawyer(s) about the stolen phone so Ms Zhao replied ‘iPhone 8’”.
[72]Ms Zhao then says:
16.Because I needed the instruction for the following day's inspection, so I had to call Mr Sun in the afternoon on 17 September 2024.
17.I was surprised by the following findings from the conversation with Mr Sun:
a).He had forgot about my stolen phone issue.
18 Zhao v Zheng HC Auckland CIV-203-404-1109, 12 May 2025 (Minute of Associate Judge Sussock) at [3].
19 At [5].
b).He and/or his team had confirmed the inspection on the following day with the defendant's lawyer without informing me.
18.I requested Mr Sun to take immediate action to correct these mistakes on 17 September 2024.
19.I clarified again about the two iphones to Ms Sugimoto on 26 September 2024, copied Mr Sun in the email because he should have known this since our conversation. I relied on them to make decision if this clarification needed to be included in the documents. (Attachment C).
[73] Attachment C was the email sent by Ms Zhao to her former solicitors on 26 September 2024, prior to the filing of her affidavit dated 1 October 2024, explaining the circumstances of the stolen phone (produced above at [65]).
[74]Ms Zhao addressed her use of WeChat as follows:
Using of WeChat:
20.I used WeChat mainly in the previous years:
a).To communicate with business suppliers and customers for fruit import/export and sales, but this type of business was stopped years ago.
b).To make video calls with my family in China. But my parents have passed away for many years. No more WeChat communication needed.
21.I didn't use the WeChat regularly in the last few years, because I didn't have too many needs to use it as stated in #20, and the iphone 5 is too old which can't update any new version of apps. I even can't use any app for banking on my phone. The only reason I still had kept the WeChat on my iphone 5 was to keep the ordinary evidence on the ordinary phone.
22.I don't have the WeChat app on my iphone 5 currently. It is not a "must have" app for me. I use phone calls, text messages and emails to communicate with the others in my daily life.
23.I could access WeChat by login on other device if I really needed, but not sure if this is doable on all devices, as I'm not an IT expert.
[75] After Ms Zhao provided her iPhone 5 for inspection, the defendant’s expert, Mr Chen, filed an affidavit dated 23 May 2025, deposing that the WeChat application was not present on the iPhone 5. Mr Chen repeated his earlier evidence that as far as
he is aware there are only three ways to remove the WeChat app from an iPhone and said that in his opinion:
(a)a factory reset has not occurred because the iPhone 5 retains personal data, third party applications and prior settings; and
(b)the WeChat app could not have been automatically removed by the “offload unused apps” feature as it was not introduced by Apple until iOS 11 and is not available on iOS 10, which the iPhone 5 runs on.
[76] In Mr Chen's opinion the WeChat app must therefore have been manually deleted from the iPhone 5 because the other two methods of removal had not occurred in this case.
[77] Mr Chen further records that during the inspection he attempted to log into Ms Zhao’s WeChat account, firstly using a Windows PC and then a separate Android device. In both instances, the system issued a prompt for a single two-factor identification method. Mr Chen explains that WeChat’s two-factor authentication method varies depending on whether the user's account is currently logged into on another device. If no other device is logged in, users are presented with alternative two-factor authentication identification options, being either text verification, registered email verification or identity recovery using trusted existing WeChat contacts. However, if another device is already logged in to the user’s account, the only available two factor authentication option is scanning a QR code using the logged in device. Here, when Mr Chen tried to log into the WeChat account, only the option requiring the scanning of a QR code presented. In Mr Chen's opinion, this confirmed that Ms Zhao’s WeChat account was actively logged into on another device at the time of testing.
[78] Using Ms Zhao’s Apple ID login credentials, Mr Chen observed within the Find My iPhone application that two devices were linked to Ms Zhao’s Apple ID:
(a)“Amy’s iPhone” – corresponding to the iPhone 5 I was inspecting; and
(b)a second “Amy’s iPhone” (“Second Device”) which was shown as currently active (i.e., switched on and connected to the internet) and located in Glen Eden, Auckland, near [Ms Zhao’s address], which I understand was the confirmed residential address of Ms Zhao.
[79] Mr Chen’s evidence is that the Find My iPhone function would not return a location unless the Second Device was powered on and actively connected. Mr Chen annexes photographs he took of the Find My iPhone application displaying the Second Device’s status and location to his affidavit. In his opinion, the Second Device was an iPhone 8 because of the dimensions and layout of the device, referring specifically to the physical circular home button, a feature present on the iPhone 8 but not on newer models.
[80] Mr Chen further records that to assist with confirming the identity of the Second Device, he examined a screenshot retrieved from Ms Zhao’s iCloud account which depicted an Apple ID login screen on a device displaying a prompt to sign in with a different Apple ID. A copy of the screenshot is annexed. Mr Chen’s evidence is that the pixels in the screenshot correspond with the known specifications of an iPhone 8 of 1334 x 750 pixels and that an iPhone 5 by comparison is limited to 1136 x 640 pixels and could not produce such a screenshot. Printouts from the Apple technical support page on the Apple website are annexed in support of this evidence.
[81] Mr Chen refers to Ms Zhao’s evidence that her iPhone 8 was stolen on 8 September 2024, that it was never registered to an Apple ID and that it did not have its Find My iPhone function enabled and says that this evidence is inconsistent with the information shown on the screenshot as:
(a)the [screenshot] was taken on 23 November 2024 at 12:03pm;
(b)the Second Device (believed to be an iPhone 8) had the same background wallpaper as the iPhone 5 (being a picture of a German Shepherd);
(c)the Second Device had the WeChat app installed (it being the app with the green icon on the third row); and
(d)the Apple ID on the Second Device had recently been changed, which is why it came up with the prompt:
Apple ID Verification
Enter the password for “ [icloud email address]” in Settings
[82] I issued a minute on 26 May 2025 providing an opportunity for Ms Zhao to file an affidavit by her own expert to respond to the defendant's expert, Mr Chen.
[83] Ms Zhao filed a memorandum dated 12 June 2025 together with an affidavit, in which she explains that she did not engage an expert because all the evidence can be found on websites and no expert skills are required, and the defendant had previously refused to accept an affidavit from the IT expert that she had hired because the defendant believed that the IT expert would favour her as the person who paid him. (This appears to be a reference to the affidavit of Mr Gong, referred to above, produced to give evidence that the WeChat messages were authentic but without allowing inspection of the phone.)
[84] The further affidavit affirmed by Ms Zhao on 6 June 2025 describes the affidavit of Mr Chen as “invalid” and says that an iPhone 8 is not the only iPhone that has a resolution of 1334 x 750 pixels as the annexures to Mr Chen's affidavit show that both the iPhone 6 and 7 have the same resolution. Ms Zhao therefore says that it is clearly proved that Mr Chen:
a).Can’t get the conclusion to “believe” the second device is an iphone 8 but not iphone 6 or 7.
b).The professional level is not sufficient. Mr Zhi Chen doesn't have enough knowledge about iphones.
c).The professional spirit is not rigorous. As long as Mr Zhi Chen did more research in the fields he is not professional in, he could find the iphone 6 and 7 having the same features as iphone 8.
d).The most important point is to be objective an neutral. As an Affidavit provider, Mr Zhi Chen should uphold a completely objective and neutral stance, using his professional knowledge to provide fair conclusions.
e).However, in fact, Mr Zhi Chen preconceived the device as an iphone 8, and then forcibly collected so called evidence to support his claim/ believe.
f).Mr Zhi Chen's behaviour is contrary to the fundamental principle of law that emphasizes evidence.
[85] Ms Zhao then deposes that the Second Device detected by Mr Chen is an iPhone 7, explaining that following her iPhone 8 being stolen, Ms Zhao found an iPhone 7 and used it to back up her iPhone 5 in November 2024.
[86] Ms Zhao says that having learned from the theft of the iPhone 8, she turned on the “Find My iPhone” on the iPhone 7 even though it did not have a SIM card. Ms
Zhao says that she did not think she needed to refer to the iPhone 7 in her previous affidavit because the backup to the iPhone 7 was done after the WeChat messages were lost and that she had “never thought to conceal this”. Ms Zhao says that she is willing for the iPhone 7 to be inspected under certain conditions, including that Mr Chen should not be able to complete the inspection.
[87] The question is whether in light of the evidence now before the Court, it has been established that there has been a deliberate and continuing refusal by Ms Zhao to comply with her discovery obligations.
[88] In my view, this is clearly the case. Contrary to the order for standard discovery and her discovery obligations under rr 8.7(b) and 8.15 of the High Court Rules, the plaintiff originally discovered only 51 WeChat messages between the parties and only on two isolated dates, 40 messages on 8 November 2016 and 11 messages on 16 January 2018.
[89] The very limited inspection that was eventually carried out by the independent barrister, Mr Yang, revealed that Ms Zhao had withheld 307 WeChat messages from those three dates alone. Since then, Ms Zhao has filed a supplementary affidavit of documents discovering further WeChat messages but only between 21 February – 8 April 2015, and on 8 April 2016 and 9 June 2017.
[90] Despite an inspection order being agreed to by Ms Zhao in September 2024, access to further WeChat messages has not been provided. This is either because those messages have been deleted either deliberately or by mistake, in breach of the obligation to preserve documents contained in r 8.3 of the High Court Rules, or because Ms Zhao has not provided access to a device on which the WeChat messages can be accessed.
[91] The primary fact in issue in the proceedings is whether or not the plaintiff exerted illegitimate pressure upon the defendant prior to his execution of the Repayment Agreement on 17 January 2018. In this context the documents that will be relevant are:
(a)documents recording the interactions between the parties during the course of their relationship (whether business or otherwise); and
(b)documents recording the parties’ interactions:
(i)in the days leading up to;
(ii)on the day of; and
(iii)the days immediately following;
the defendant’s signing of the Repayment Agreement.
[92] On 16 January 2018 alone, one day prior to the signing of the Repayment Agreement, 133 WeChat messages, eight of which were voice messages, have either been discovered by Ms Zhao or retrieved as a result of the inspection by the independent barrister. Those messages include the messages set out above. I am conscious that these messages have been selected by the defendant’s solicitors and do not include any messages from the defendant. But there can be no doubt that those messages are highly relevant to the claim and ought to have been discovered in the first place.
[93] Furthermore, it is not credible that there are no other relevant messages either in the immediate days before 16 January 2018, the day of the Agreement itself (17 January 2018) or the days immediately following, yet none have been discovered by the plaintiff. She has clearly not therefore complied with her discovery obligations from the outset.
[94] In my minute of 12 May 2025 I directed Ms Zhao to file a further affidavit explaining when and how Ms Zhao advised her solicitors that the device that would be provided on 18 September 2024 for inspection was an iPhone 8 rather than the original iPhone 5, given that this advice was provided after her iPhone 8 had been stolen. Ms Zhao’s evidence is that she believed that Mr Sun, of Capstone Law, “had known the whole situation about the phones” and so she simply replied “iPhone 8”. There is a possibility that there was a miscommunication. However, Ms Zhao’s version
of events is still not credible. If in fact she transferred the WeChat messages from her iPhone 5 to the iPhone 8 and the iPhone 8 was then stolen, why did Ms Zhao need to advise Mr Sun of a new phone number? She had apparently been using the iPhone 5 up until that point, she still had the iPhone 5 and her evidence in her 31 October affidavit is that the iPhone 8 did not have a SIM card.
[95] Furthermore, and in any event, Ms Zhao was required to confirm in her May 2025 affidavit what device she currently uses to send and receive WeChat messages. During the telephone conference on 12 May 2025, Ms Zhao said that she did not currently send or receive WeChat messages but that she had purchased a new iPhone 13 for her daughter to use that Ms Zhao would use in the future (as recorded in the minute). In her affidavit of 6 June 2025, Ms Zhao continued to say she had not used WeChat regularly in the last few years because she did not have many reasons to use it, and the iPhone 5 is too old, so she cannot update to the new version of the application.
[96] The defendant's expert has now identified that there was a second iPhone at her address also called “Amy's iPhone” that the expert considered may be the iPhone 8 in issue, referred to above as the Second Device.
[97] Now, Ms Zhao in her most recent affidavit in reply gives evidence for the first time that she has an iPhone 7 and, rather than obtaining expert evidence to respond to the defendant's expert, attempts to discredit him.
[98] The screenshot that the defendant’s expert refers to from this Second Device is dated 23 November 2024, well before the 12 May 2025 telephone conference where Ms Zhao did not mention an iPhone 7, including when asked what device she used for WeChat, referring instead to her daughter’s iPhone 13.
[99] Furthermore, Ms Zhao does not challenge the defendant expert’s evidence that this Second Device has the WeChat app installed on it or that it was connected to WeChat at the time of his inspection. Ms Zhao’s only response is that she did not consider she needed to refer to the iPhone 7 because a backup was only put onto the iPhone 7 after the WeChat messages had already been lost.
[100] Although it is possible that there was some miscommunication between the plaintiff and her previous solicitors, Ms Zhao's actions since, including now referring to an iPhone 7 having never previously referred to this phone, reflect a deliberate and continuing refusal to comply with discovery obligations. This is despite every effort being made to ensure she understood her obligations and was given an opportunity to comply.
[101] Ms Zhao has known since November 2024 that the defendant is seeking to strike out her claim on the basis of her failure to comply with her obligation to discover all relevant WeChat messages. Despite this Ms Zhao has not provided copies of the WeChat messages or provided a credible explanation as to how they were deleted or of how she accesses and uses WeChat currently.
[102] As set out above, the Court of Appeal in Kent Sing Trading Co Ltd v JNJ Holdings Ltd held that either a deliberate and continuing refusal to comply had to be found or that the default makes a fair trial impossible.20 I have found that the first of these has been established, that there was a deliberate and continuing refusal to comply.
[103] In case I am wrong, and to assist in deciding whether it is just to strike out the plaintiff’s claim, I go on to consider whether Ms Zhao’s default makes a fair trial impossible.
Does Ms Zhao’s default make a fair trial possible?
[104] Ms Zhao submits that some messages have been discovered or retrieved from the iPhone 5 and that this is sufficient for the defendant’s purposes. However, only WeChat messages on confined dates are available, with several of these dates not in close proximity to the date of the Repayment Agreement and not on the date of the Agreement itself. As submitted by the defendant, the drawing of adverse inferences alone may be insufficient to remedy the significant prejudice because:
20 Kent Sing Trading Co Ltd v JNJ Holdings Ltd, above n 6, at 44] to [46].
(a)the relevant events took place more than six years ago and the defendant cannot be expected to recall the details of each and every WeChat message that he has sent to or received from the plaintiff, particularly during a period that the defendant alleges was marked by significant trauma and duress; and
(b)the threshold for a defence of duress is high with the defendant required to prove:
(i)the plaintiff exerted illegitimate pressure on him through threats of a physical or economic nature that the law regards as illegitimate; and
(ii)the pressure applied was so extreme that he had no choice but to submit.
[105] Without access to the allegedly deleted WeChat messages, the defendant is significantly disadvantaged in his ability to meet this high threshold. This is particularly relevant where the plaintiff accepted from the outset that a key issue was whether a defence of duress could be made out. Her discovery from the outset therefore ought to have included all of the WeChat messages between the parties relevant to this question. The evidence establishes that it clearly did not.
[106] Ms Zhao questions why the Court believes that Mr Zheng no longer has access to the WeChat messages when the plaintiff's credibility on this issue is in question. But Mr Zheng has taken every step available to him to ensure that the WeChat messages are before the court, including paying the independent barrister
$3,954.25 to inspect the plaintiff’s phone on three dates alone, so there is no reason why he would not be telling the truth in terms of no longer having access to those messages.
[107] Ordinarily an unless order would be made requiring access to be provided to her WeChat account, but it is clear from the steps that have been taken that this would not be successful in obtaining access to the messages. It is the lack of access to these
messages that means a fair trial is impossible, whether Ms Zhao deleted them by accident or not. As set out above, strike out can be ordered either where there has been a deliberate and continuing refusal to comply with discovery orders or where a party’s default means a fair trial is impossible. There is no question of both in this case.
[108] Ms Zhao further attempts to resist strike out by submitting that WeChat messages are not the only evidence in the case and that the defendant and his lawyer still have never provided a reasonable explanation for the true relationship between the parties, with Ms Zhao alleging that there are inconsistencies in the defendant's earlier affidavits. But the defendant is not required to prove the nature of the parties’ relationship before discovery is required. The WeChat messages, especially in the days leading up to, the day of, and the days following, the date of the Repayment Agreement, are highly relevant to the defendant’s defence of duress and so were clearly required to be discovered.
If so, is it just to strike out the proceeding?
[109] Having found both the alternative prerequisites for strike out present, I now consider whether there are any alternatives to strike out given this is such a serious step.
[110] Ms Zhao does offer for the iPhone 7 to be inspected. I have considered whether further orders ought to be made, not only for inspection of the iPhone 7 but also unless orders to provide further details of her WeChat use. However, the plaintiff's affidavit to date gives me no confidence that any further useful explanation or evidence would be received, as the Court similarly found in Established Investments Ltd (in liq) v Armitage.21 She has been given every opportunity to comply but every response includes a new twist in her story.
[111] It is unusual for a plaintiff’s claim to be struck out for failure to comply with discovery orders. However, the WeChat messages are highly relevant to the defendant's affirmative defence of duress, with the plaintiff effectively in the position
21 Established Investments Ltd (in liq) v Armitage HC Auckland CIV-2004-404-4084, 2 April 2007 at [24].
of a defendant in terms of this defence. And from the 14 WeChat messages set out above, it is clear the defendant will be highly prejudiced from the failure by Ms Zhao to discover the remaining WeChat messages. It is not credible that there will be no further relevant messages on the day of or otherwise surrounding the date of the Repayment Agreement.
[112] As in Commonwealth Reserves v Chodar, where Glazebrook struck out a defence for discovery defaults when that discovery was necessary for the plaintiff to prove its claim,22 discovery of the WeChat messages here is necessary for the defendant to prove duress.
Conclusion
[113] For the reasons set out above, there is no option but to strike out the plaintiff’s claim for the plaintiff’s deliberate and continuing refusal to comply with her discovery obligations and because the plaintiff's default in failing to discover all relevant WeChat messages means a fair trial is now impossible.
[114] In addition, an order lapsing the caveat over the Taupo property is required as the caveat was only to remain to allow these proceedings to be brought to determine the plaintiff’s claim. Now that the proceedings are being struck out, there is no basis for the caveat to remain.
Application to vary inspection orders
[115] As a consequence of the decision I have reached to strike out the proceeding, Ms Zhao’s application to vary the inspection orders made no longer needs to be determined.
Should indemnity costs be awarded?
[116] The circumstances in which indemnity costs may be awarded include where a party has acted improperly in a step in the proceeding or has ignored or disobeyed an order or direction of the Court or where some other reason exists which justifies the
22 Commonwealth Reserves v Chodar HC Auckland CP73-SW 0018 July 2000, at [31].
court making an order for indemnity costs despite the principle that costs should be predictable and expeditious.23
[117] As I have found both a deliberate and continuing refusal to comply and that the plaintiff's default makes a fair trial impossible, I consider on a preliminary basis that it is appropriate to award indemnity costs. However, I allow submissions to be filed as directed below because costs on the caveat proceedings were also reserved for determination following determination of the substantive proceedings. The defendant is to file a schedule of the costs claimed, including attaching copies of the invoices issued to the defendant (with any privileged material redacted), to allow indemnity costs to be quantified if an award on that basis is appropriate. The plaintiff will then have an opportunity to file a memorandum in reply and costs will be determined on the papers.
Contempt of Court
[118] Finally, I record that the defendant originally sought an order that the plaintiff is in contempt of court together with the imposition of a fine. It is not clear that the defendant is still pursuing such an order. If the defendant is, a memorandum may be filed at the same time as the costs memorandum and the plaintiff may respond together with her costs submissions.
Result
[119] The defendant’s application to strike out the plaintiff’s statement of claim is granted.
[120] The caveat lodged by the plaintiff over the defendant’s property in Taupo is to lapse from the date of this judgment.
23 High Court Rules 2016, r 14.6(4).
Costs
[121] The defendant is to file a costs memorandum addressing both costs on the strike out application and the caveat proceedings together with any memorandum seeking orders under the Contempt of Court Act by 6 October 2025.
[122] The plaintiff is to file a costs memorandum in response and any memorandum in response to any defendant’s memorandum seeking orders under the Contempt of Court Act (if filed) by 20 October 2025.
[123] Costs will then be determined on the papers and any Contempt of Court memoranda will be referred to a High Court Justice for determination.
Associate Judge Sussock
0
4
1