MO AND ANOR v TAMAKI HOMES LIMITED [2020] NZHC 302

MO AND ANOR v TAMAKI HOMES LIMITED [2020] NZHC 302

The application to vary the interim charging order was granted in part: increases to the specified mortgage and rates amounts were approved, payment to bona fide trade creditors in the sum of $144,864.36 was authorised because the plaintiffs' security (caveat and preservation of net proceeds) adequately protected their interest and payment was necessary to complete the development, and a process was ordered for verification and resolution of the GST calculation before payment of any GST.

Citation
[2020] NZHC 302
Parties
Plaintiffs: Qinghua Mo and Yu Huang; First Defendant: Tamaki Homes Limited; Second Defendants: Zhe Yang and Jackson Ing Wei Law
Court
High Court
Jurisdiction
New Zealand
Judgment Date
27 February 2020
Procedural Posture
Application for Pre Judgment Charging Order / Variation of Interim Charging Orders
Outcome
Application to vary interim charging orders granted in part and directions issued
Legal Topics
Pre Judgment Charging Order, Interim Charging Order Variation, Caveat, Payment of Trade Creditors, GST Calculation, Rates
Property Law Civil Procedure Creditors' Rights Equity Tax Law Pre Judgment Charging Order Interim Charging Order Variation Caveat +3 more

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Parties

Qinghua Mo and Yu Huang

Plaintiffs

Tamaki Homes Limited

First Defendant

Zhe Yang and Jackson Ing Wei Law

Second Defendants

Procedural Posture

Application for Pre Judgment Charging Order / Variation of Interim Charging Orders

Legal Issues

  1. 1 Whether the interim charging order should be varied to increase specified secured amounts
  2. 2 Whether GST payable from sale proceeds may be paid without prior verification by plaintiffs
  3. 3 Whether trade creditors may be paid the sum claimed rather than distributions being made pari passu with the plaintiffs

Ratio Decidendi

The application to vary the interim charging order was granted in part: increases to the specified mortgage and rates amounts were approved, payment to bona fide trade creditors in the sum of $144,864.36 was authorised because the plaintiffs' security (caveat and preservation of net proceeds) adequately protected their interest and payment was necessary to complete the development, and a process was ordered for verification and resolution of the GST calculation before payment of any GST.

Court Disposition

Application to vary interim charging orders granted in part and directions issued

Orders

  • Increase amount payable to First Mortgage Trust from $2,020,000 to $2,028,782.07
  • Increase amount payable to Auckland City Council for general rates to $3,077.04