MILLS and MILLS v FENG and ENG [2023] NZHC 1199

MILLS and MILLS v FENG and ENG [2023] NZHC 1199

The application was dismissed because the applicant failed to establish a probable substantial miscarriage of justice: evidence indicated the co-defendant likely lacked accessible assets and was overseas, enforcement in China would be difficult but that risk falls on the joint debtor; the applicant's financial disclosure was inadequate and recent transfers suggested available assets; the applicant's counterclaims were weak and insufficient to justify a stay.

Citation
[2023] NZHC 1199
Parties
Plaintiffs: DAVID LAWRENCE MILLS and FIONNA EILEEN MILLS as trustees of THE MILLS FAMILY TRUST; First Defendant: WEIQIANG FENG (also known as BRIAN FENG); Second Defendant: KAI WANG (also known as TONY WANG)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 May 2023
Procedural Posture
Civil Contract (sale and Purchase) and Enforcement Proceedings / Application for Stay of Execution Following Summary Judgment
Outcome
Application for stay of execution dismissed; costs awarded to plaintiffs.
Legal Topics
Summary Judgment, Stay of Execution, Indemnity, Bankruptcy Notice, Charging Order, Substituted Service, Mitigation of Loss, Fair Trading Act S9
Contract Civil Procedure Bankruptcy Property Law Consumer Protection Summary Judgment Stay of Execution Indemnity +5 more

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Parties

DAVID LAWRENCE MILLS and FIONNA EILEEN MILLS as trustees of THE MILLS FAMILY TRUST

Plaintiffs

WEIQIANG FENG (also known as BRIAN FENG)

First Defendant

KAI WANG (also known as TONY WANG)

Second Defendant

Procedural Posture

Civil Contract (sale and Purchase) and Enforcement Proceedings / Application for Stay of Execution Following Summary Judgment

Legal Issues

  1. 1 Whether a stay of enforcement under r 17.29 should be granted
  2. 2 Whether a substantial miscarriage of justice is probable if enforcement proceeds
  3. 3 Whether the applicant's indemnity claim and counterclaims justify staying enforcement

Ratio Decidendi

The application was dismissed because the applicant failed to establish a probable substantial miscarriage of justice: evidence indicated the co-defendant likely lacked accessible assets and was overseas, enforcement in China would be difficult but that risk falls on the joint debtor; the applicant's financial disclosure was inadequate and recent transfers suggested available assets; the applicant's counterclaims were weak and insufficient to justify a stay.

Court Disposition

Application for stay of execution dismissed; costs awarded to plaintiffs.

Orders

  • Application for a stay of enforcement dismissed.
  • Plaintiffs entitled to costs from the first defendant; if costs are not agreed by 31 May 2023, parties may file memoranda not exceeding two pages excluding annexures: plaintiffs by 2 June 2023 and Mr Feng by 9 June 2023.