BANK OF NEW ZEALAND v HUANG [2018] NZHC 1465

BANK OF NEW ZEALAND v HUANG [2018] NZHC 1465 [19 June 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-000803[2018] NZHC 1465BETWEEN BANK OF NEW ZEALANDPlaintiffAND JING HUANGFirst DefendantBENJAMIN BAN CHONG BONG andJING HUANG as trustees of THE HUANGFAMILY TRUSTSecond DefendantsHearing: 19 June 2018Counsel: S M Brown for the PlaintiffNo appearance by or on behalf of the First DefendantNo appearance by or on behalf of the Second DefendantsJudgment: 19 June 2018JUDGMENT OF WOOLFORD JSolicitors: Buddle Findlay, Auckland[1] This is the first call of an application for summary judgment. The Bank ofNew Zealand (the Bank) seeks judgment in the sum of $4,547,165.08 againstJing Huang personally and against Jing Huang and Benjamin Ban Chong Bong astrustees of The Huang Family Trust.[2] In August 2013, the Bank entered into a Trade Finance Facility agreement withGreenmark Wholesaler (NZ) Limited of which Mr Huang was a director. Thecompany's obligations under the Trade Finance Facility were secured by a guaranteefor an unlimited amount from Mr Huang and a guarantee for an unlimited amountfrom the Huang Family Trust supported by a registered mortgage over Mr Huang'shouse at 12 Bejoy Rise, Dannemora. The company subsequently began drawing downunder the Trade Finance Facility.[3] The Trade Finance Facility was increased from its initial limit of $2.2 millionto $3 million in January 2014 and then to $6.5 million in October 2014. The companyhad various other facility agreements with the Bank. It also operated various accountswith the Bank.[4] By May 2017 the arrears owing by the company under the Trade FinanceFacility, another facility agreement and a bank account amounted to $702,898.60.Formal demand was made of the company, Mr Huang and the Huang Family Trust,the latter two as guarantors. The demand was not met.[5] On 15 May 2017 the Bank placed the company into receivership. On or about18 July 2017 the total amount owing under the Trade Finance Facility, various otherfacilities and bank accounts was $6,053,004.97. The Bank subsequently realisedproperty of the company subject to its security and arranged for the sale of Mr Huang'shome at 12 Bejoy Rise. The amount realised was $1,529,711.33. This sum has beendeducted from the total amount owing.[6] On or about 14 March 2018 the total amount owing was $4,446,472.60. Onthat date, the Bank sent Mr Huang and the trustees of the Huang Family Trust asguarantors, formal demands for immediate payment. Mr Huang and the trustees ofthe Huang Family Trust have failed or refused to pay the amount outstanding.[7] These proceedings have subsequently been issued. Mr Huang has been unableto be located and served personally with them. He is believed to be in China. Anorder for substituted service was granted by the High Court on 3 May 2018, directingservice by:(a) emailing a copy of the documents to Mr Huang's hotmail address;(b) delivering a copy of the documents to Mr Bong; and(c) publishing a notice in the Public Notices section of the New ZealandHerald newspaper.These have all been undertaken. Mr Bong was also served with the documents in theseproceedings in his capacity as a trustee of the Huang Family Trust.[8] There is no appearance today by or on behalf of either Mr Huang or Mr Bong.The application for summary judgment is, therefore, undefended.[9] I am satisfied that there is no defence to the Bank's claim and accordingly therewill be judgment against both Mr Huang as first defendant and Mr Huang andMr Bong as trustees of the Huang Family Trust as second defendants in the sum of$4,446,472.60, being the amount claimed against the defendants in the statement ofclaim as at 24 April 2018, plus interest of $100,692.48 at 8.61 per cent per annum onthe amount of $4,446,472.60 outstanding under the Trade Finance Facility from 15March 2018 to 18 June 2018 (being 96 days at rate of $1,048.88 per day). The totaljudgment sum is therefore $4,547,165.08.[10] The plaintiff is also entitled to solicitor/client costs in the sum of $9,277.20 anddisbursements in the amount of $2,430.60 in accordance with the memorandum ofsolicitor-client costs and the memorandum of calculation dated 18 June 2018._________________________Woolford J