MAINZEAL PROPERTY AND CONSTRUCTION LTD (IN REC AND IN LIQ) v YAN [2018] NZHC 1886

MAINZEAL PROPERTY AND CONSTRUCTION LTD (IN REC AND IN LIQ) v YAN [2018] NZHC 1886

Leave to file and serve the third amended statement of claim was granted because the amendments were confined to clarifying and refining existing claims (not introducing new causes of action), addressed the nature of a $15.15 million debt transfer and the basis of liability of certain defendants, and would not cause significant prejudice; the liquidators of the seventh and eighth defendants consented and were excused from further procedural steps; undertakings were varied to reflect liquidation and to set out management of funds, sale of vineyard and wine stock, permitted deductions, and conditions for expiry of the orders.

Citation
[2018] NZHC 1886
Parties
First Plaintiff: MAINZEAL PROPERTY AND CONSTRUCTION LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION); Second Plaintiff: KING FAÇADE LIMITED (PREVIOUSLY KNOWN AS RICHINA LAND LIMITED) (IN LIQUIDATION); Third Plaintiff: MAINZEAL GROUP LIMITED (IN LIQUIDATION); Fourth Plaintiffs: ANDREW JAMES BETHELL, BRIAN MAYO-SMITH and STEPHEN JOHN TUBBS (as liquidators of MAINZEAL PROPERTY AND CONSTRUCTION LIMITED, KING FAÇADE LIMITED and MAINZEAL GROUP LIMITED); First Defendant: RICHARD CILIANG YAN; Second Defendant: PETER GOMM; Third Defendant: RT HON JENNIFER MARY SHIPLEY; Fourth Defendant: CLIVE WILLIAM CHARLES TILBY; Fifth Defendant: SIR PAUL DAVID COLLINS; Sixth Defendant: SIEW MAY KWAN; Seventh Defendant: RICHINA GLOBAL REAL ESTATE LIMITED (IN LIQUIDATION); Eighth Defendant: ISOLA VINEYARDS LIMITED (PREVIOUSLY KNOWN AS WAIHEKE VINEYARDS LIMITED) (IN LIQUIDATION)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
27 July 2018
Procedural Posture
Civil Commercial Litigation (insolvency / Receivership) / Interlocutory Application for Leave to Amend Pleadings (on the Papers)
Outcome
Application granted. Leave to file and serve third amended statement of claim granted; liquidators' consent recorded; undertakings varied; costs reserved.
Legal Topics
Amendment of Pleadings, Constructive Trust, Knowing Receipt, Variation of Undertakings, Proprietary Claims
Insolvency Company Law Civil Procedure Equity Trusts Amendment of Pleadings Constructive Trust Knowing Receipt +2 more

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Parties

MAINZEAL PROPERTY AND CONSTRUCTION LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION)

First Plaintiff

KING FAÇADE LIMITED (PREVIOUSLY KNOWN AS RICHINA LAND LIMITED) (IN LIQUIDATION)

Second Plaintiff

MAINZEAL GROUP LIMITED (IN LIQUIDATION)

Third Plaintiff

ANDREW JAMES BETHELL, BRIAN MAYO-SMITH and STEPHEN JOHN TUBBS (as liquidators of MAINZEAL PROPERTY AND CONSTRUCTION LIMITED, KING FAÇADE LIMITED and MAINZEAL GROUP LIMITED)

Fourth Plaintiffs

RICHARD CILIANG YAN

First Defendant

PETER GOMM

Second Defendant

RT HON JENNIFER MARY SHIPLEY

Third Defendant

CLIVE WILLIAM CHARLES TILBY

Fourth Defendant

SIR PAUL DAVID COLLINS

Fifth Defendant

SIEW MAY KWAN

Sixth Defendant

RICHINA GLOBAL REAL ESTATE LIMITED (IN LIQUIDATION)

Seventh Defendant

ISOLA VINEYARDS LIMITED (PREVIOUSLY KNOWN AS WAIHEKE VINEYARDS LIMITED) (IN LIQUIDATION)

Eighth Defendant

Procedural Posture

Civil Commercial Litigation (insolvency / Receivership) / Interlocutory Application for Leave to Amend Pleadings (on the Papers)

Legal Issues

  1. 1 Whether leave should be granted to file a third amended statement of claim
  2. 2 Whether the proposed amendments introduce new causes of action or merely clarify existing claims
  3. 3 Whether granting leave would cause significant prejudice to defendants

Ratio Decidendi

Leave to file and serve the third amended statement of claim was granted because the amendments were confined to clarifying and refining existing claims (not introducing new causes of action), addressed the nature of a $15.15 million debt transfer and the basis of liability of certain defendants, and would not cause significant prejudice; the liquidators of the seventh and eighth defendants consented and were excused from further procedural steps; undertakings were varied to reflect liquidation and to set out management of funds, sale of vineyard and wine stock, permitted deductions, and conditions for expiry of the orders.

Court Disposition

Application granted. Leave to file and serve third amended statement of claim granted; liquidators' consent recorded; undertakings varied; costs reserved.

Orders

  • Leave granted to the plaintiffs to file and serve the third amended statement of claim.
  • Any amended defences to be filed and served by 17 August 2018.