FENG GAO v STARLIGHT CAPITAL LIMITED (6418392) [2019] NZHC 3031

FENG GAO v STARLIGHT CAPITAL LIMITED (6418392) [2019] NZHC 3031 [20 November 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-2034[2019] NZHC 3031BETWEEN FENG GAO as trustee of GAO AND LIFAMILY TRUSTPlaintiffAND STARLIGHT CAPITAL LIMITED(6418392)DefendantHearing: 20 November 2019Appearances: No appearance for the plaintiffR M Dillon for the defendantJudgment: 20 November 2019ORAL JUDGMENT OF PALMER JCounsel/Party:R M Dillon, AucklandCopy to:The PlaintiffWhat has happened?[1] The plaintiff filed this proceeding in September 2019. It included whatpurported to be an application to set aside a Property Law Act notice and any followingmortgagee sale process. The application was not in the form required by r 7.19 of theHigh Court Rules 2016 (the Rules). It was supported by an affidavit that said only hehad reported the respondent to the Police for misleading him and "involving someserious fraud". He only served some of the required documents on the defendant. On22 October 2019, Downs J adjourned the proceeding for two weeks at the defendant'srequest to give the plaintiff time to remedy his application.[2] On 5 November 2019, the plaintiff requested an adjournment due to his travelto China because of his father's grave illness. He then did not appear at the call in theList on 6 November 2019. The defendant opposed a further adjournment on the basisthe proceeding is not in the proper form and there is no pleaded basis for the plaintiff'sapplication. The defendant sought the proceeding be struck out. On 6 November2019, Whata J adjourned the proceeding until today and gave the plaintiff until 5 pmWednesday 13 November 2019 to set out his reasons why his matter should not bestruck out. He made clear that, if the plaintiff did not respond, it would seem inevitablethat strike-out would follow.Submissions[3] On 12 November 2019, the plaintiff filed a memorandum saying he is underheavy stress with the sickness of his father. He appears still to be in China though thatis not clear. He says he is awaiting a full report from New Zealand Police in order toadd more grounds to, and complete, the interlocutory application. He seeks an orderfor a full investigation by the Police and a further call in the list in mid-December2019.[4] Mr Dillon, for the defendant, correctly submits the plaintiff's claim does notset forth any recognised basis for the relief claimed and does not extend to all theparties that have the same interest as the named plaintiff. He correctly submits theplaintiff has failed to comply with:(a) rr 5.26 and 5.27 of the rules in not adequately stating the nature of theclaim in the statement of claim and application for interlocutory relief;(b) r 4.23 in not listing all of the trustees of the trust; and(c) the court's directions to date.[5] Mr Dillon submits the defendant is thereby prejudiced in the defence of theproceeding and in continuing the planned mortgagee sale in the shadow of an apparentattempt at a claim for relief. He submits the pleading is incoherent and the affidavitin support of the application for interlocutory relief provides no relevant evidence. Hesubmits it should be struck out under r 7.48(2)(a), which requires that I consider doingso is just. He also submits the plaintiff has not provided initial disclosure as requiredunder r 8.4(4), and specifies examples, and submits that constitutes another ground forstriking out the proceeding.[6] This has been the plaintiff's fifth opportunity to remedy a defective applicationand unsubstantiated claim. The plaintiff has not appeared at this call of the proceedingor the last. I strike out the proceeding under r 7.48(2)(a). I grant leave to the defendantto file and serve an application and submissions on costs within 10 working days. Theplaintiff will then have 10 working days to respond if he wishes.Palmer J