LI V LI & Anor HC AK CIV-2011-404-7393

LI V LI & Anor HC AK CIV-2011-404-7393

Because only a portion of the sale proceeds (approximately NZD125,000–NZD140,000) was arguably traceable to the plaintiffs and the proprietary claim was unlikely to extend to the entire frozen sum, the court found it appropriate to vary the freezing order and permit limited releases: monthly living expenses (NZD4,500), specified lump sums for debt servicing (NZD1,450) and relocation/furnishing (NZD7,000), and monthly legal costs on a Category 2B basis with 30% uplift, conditioned to protect the plaintiffs' ability to proceed to trial and subject to review.

Citation
openlaw-51db2038_2a36_4953_a125_c0f3033be1b8.pdf
Parties
First Plaintiff: Song Guang Li; Second Plaintiff: Yan Xiang Li; First Defendant: Ting Chung Li; Second Defendant: Golden Forrest Trustee Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 November 2011
Procedural Posture
Civil Freezing Order Variation Application / Interlocutory Application to Vary Freezing Order Pre Trial
Outcome
Freezing order varied to permit limited release of frozen sale proceeds for specified living, relocation, debt servicing and legal costs pending trial
Legal Topics
Freezing Order, Mareva Injunction, Variation of Freezing Order, Proprietary Claim, Trust Beneficiary, Misrepresentation, Pre Trial Directions, Legal Costs Allowances
Civil Procedure Equity Injunctions Trusts Property Law Contract Costs Freezing Order +7 more

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Parties

Song Guang Li

First Plaintiff

Yan Xiang Li

Second Plaintiff

Ting Chung Li

First Defendant

Golden Forrest Trustee Limited

Second Defendant

Procedural Posture

Civil Freezing Order Variation Application / Interlocutory Application to Vary Freezing Order Pre Trial

Legal Issues

  1. 1 Whether the freezing order should be varied to permit release of sale proceeds for living and relocation expenses and legal costs
  2. 2 Whether plaintiffs have an arguable proprietary claim to the sale proceeds received by the second defendant
  3. 3 Appropriate quantum and mechanism for release of frozen funds pending trial

Ratio Decidendi

Because only a portion of the sale proceeds (approximately NZD125,000–NZD140,000) was arguably traceable to the plaintiffs and the proprietary claim was unlikely to extend to the entire frozen sum, the court found it appropriate to vary the freezing order and permit limited releases: monthly living expenses (NZD4,500), specified lump sums for debt servicing (NZD1,450) and relocation/furnishing (NZD7,000), and monthly legal costs on a Category 2B basis with 30% uplift, conditioned to protect the plaintiffs' ability to proceed to trial and subject to review.

Court Disposition

Freezing order varied to permit limited release of frozen sale proceeds for specified living, relocation, debt servicing and legal costs pending trial

Orders

  • Golden Forrest is permitted to pay living expenses to the first defendant in the sum of NZD4,500 per calendar month payable monthly in advance on the first day of each month commencing 1 December 2011.
  • Golden Forrest is permitted to make a single lump sum payment of NZD1,450 to the first defendant on 1 December 2011 for debt servicing.