GAO v CAO [2015] NZHC 1609

GAO v CAO [2015] NZHC 1609

Leave to file a statement of defence out of time was granted because an arguable defence was disclosed on the material before the Court, the plaintiff's interim position was protected (registered caveat) and no irremediable prejudice was established; the unexplained delay weighed against the defendant but could be...

Source-derived case information.

Citation
[2015] NZHC 1609
Parties
Plaintiff: Jing Gao; First Defendant: Yang Cao; Second Defendant: Feng Qiang Cao; Third Defendant: Yan Hua Li
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 July 2015
Procedural Posture
Civil Property/trust Dispute / Interlocutory (application for Leave to File Statement of Defence Out of Time; Formal Proof Application Pending)
Outcome
Leave granted to first defendant to file a statement of defence out of time on strict conditions; if conditions not met defendant debarred from defending and matter will proceed to formal proof at plaintiff's request.
Legal Topics
Constructive Trust, Declaration of Trust, Order for Sale, Caveat, Leave to Defend Out of Time, Formal Proof, Failure to Account, Fiduciary Duty
Trusts Property Equity Civil Procedure Contract Constructive Trust Declaration of Trust Order for Sale +5 more

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Parties

Jing Gao

Plaintiff

Yang Cao

First Defendant

Feng Qiang Cao

Second Defendant

Yan Hua Li

Third Defendant

Procedural Posture

Civil Property/trust Dispute / Interlocutory (application for Leave to File Statement of Defence Out of Time; Formal Proof Application Pending)

Legal Issues

  1. 1 Whether first defendant should be granted leave to file a statement of defence out of time
  2. 2 Whether the plaintiff has an equitable interest in the property (trust vs gift vs loan)
  3. 3 Whether plaintiff will suffer irreparable prejudice if leave is granted

Ratio Decidendi

Leave to file a statement of defence out of time was granted because an arguable defence was disclosed on the material before the Court, the plaintiff's interim position was protected (registered caveat) and no irremediable prejudice was established; the unexplained delay weighed against the defendant but could be addressed by ordering payment of wasted costs and imposing strict conditions and deadlines.

Court Disposition

Leave granted to first defendant to file a statement of defence out of time on strict conditions; if conditions not met defendant debarred from defending and matter will proceed to formal proof at plaintiff's request.

Orders

  • Leave granted to first defendant to file and serve a fully particularised statement of defence by 4.00 pm on Friday 24 July 2015
  • First defendant to pay plaintiff's solicitors wasted costs of NZD 8,318.50 by 4.00 pm on 24 July 2015 (breakdown recorded in judgment)