Stalix Property Limited v Wu [2022] NZHC 2006 (12 August 2022)

Last Updated: 26 August 2022

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-241 [2022] NZHC 2006

IN THE MATTER	of an application for recovery of land
BETWEEN	STALIX PROPERTY LIMITED and STRESS FREE CHAIRS, DINING AND LOUNGE LIMITED Plaintiffs
AND	YI HENG WU (also known as Henry Wu) First Defendant XI CHEN Second Defendant ZHONG XIU FAN Third Defendant FANG CHUN WU Fourth Defendant

Hearing:	12 August 2022 (by Telephone)
Appearances:	G K Riach for Plaintiffs Mr Wu in person
Judgment:	12 August 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(stay application)

STALIX PROPERTY LIMITED v WU [2022] NZHC 2006 [12 August 2022]

• [1] Mr Wu (the first defendant) has filed an appeal against my decision of 5 August 2022,¹ making an order for possession against him and the other defendants in relation to a property at 15 Blarney Place, Casebrook, Christchurch (the property). Ms Fan, who was also a defendant in the proceeding seeking the order for possession, has also filed a separate appeal.

• [2] I directed the order lie in Court for five working days to allow the defendants time to vacate the property. Once the order is sealed and served the defendants will have 48 hours to vacate the property. Mr Wu filed his application for a stay in support of the appeal on 8 August 2022. Given my order is able to be sealed on 12 August 2022, I directed on 9 August 2022 that Mr Wu’s stay application be heard by way of telephone hearing on Friday 12 August 2022 at 11 am. I directed that a notice of opposition was to be filed by 12 pm on 11 August 2022. A notice of opposition has been filed.

• [3] Mr Wu’s application for a stay is declined. I do so as the order for possession that I made was the inevitable consequence of previous orders of this Court, which remain in force. The history to the litigation involving Mr Wu and Ms Fan is set out in Osborne J’s judgment of 1 March 2022 (the March Judgment).²

• [4] In summary, Mr Wu was held liable by this Court to pay to his ex-wife, Ms Li, her relationship property entitlement. Ms Fan’s claim for a trust interest in the family home was dismissed (Gendall J’s substantive judgment).³

• [5] Leave sought by Mr Wu and Ms Fan to commence appeals out of time in the Court of Appeal against the substantive judgment was declined by the Court of Appeal on 27 April 2021.⁴ A further application by Mr Wu and Ms Fan to the Court of Appeal to recall that judgment was declined on 18 August 2021.⁵

¹ Stalix Property Ltd v Wu [2022] NZHC 1928.

² Li v Wu [2022] NZHC 333.

³ Li v Wu [2019] NZHC 2461.

⁴ Wu v Li [2021] NZCA 137.

⁵ Wu v Li [2021] NZCA 389.

• [6] The need to complete this judgment under urgency means I do not set out the full litigation history but again, that is summarised in the March Judgment.

• [7] The order for possession was made following the property being sold by the Registrar of the High Court pursuant to a sale order made by Gendall J on 28 September 2021.⁶ An application by Ms Fan to stay the sale of the property was dismissed by Osborne J in the March Judgment.

• [8] Mr Wu’s present appeal is in substance a collateral challenge to the substantive judgment of Gendall J, that is, the original order requiring Mr Wu to pay his ex-wife her relationship property entitlements and the dismissal of Ms Fan’s Trust claim. It is also a collateral challenge to the sale order and the March Judgment.

• [9] The notice of appeal filed by Mr Wu (and that filed by Ms Fan) do not raise new points to those previously dismissed by the Courts. The very points Mr Wu wishes to pursue in his appeal were dismissed by Osborne J in his March Judgment. The same arguments were put to me in opposition to the making of the order for possession but I concluded that Mr Wu’s argument as to whether judgment had been given in respect of both proceedings CIV-2018-409-238 and CIV-2018-409-612 could not survive the March Judgment.

• [10] The argument that somehow judgment has not been given in Ms Fan’s proceeding or that there is some significance in the way the intituling of the judgments is set out, has been described as being “entirely misconceived”. This is simply not a point of substance and as I noted in my 5 August 2022 judgment, even if there had been some irregularity in terms of the way the documents had been described, the High Court Rules 2016 say any such issue does not invalidate the judgment.⁷

• [11] Accordingly, I conclude the merits of the proposed appeal are so weak as to not warrant a stay being granted. I accept that there will be inconvenience to Mr Wu and the defendants in having to vacate the property, but the fact is the plaintiffs are the registered proprietors of the property. They purchased it in good faith and at arm’s

⁶ Li v Wu [2021] NZHC 2552, re-issued on 20 November 2021.

⁷ Stalix Property Ltd v Wu, above n 1, at [20], citing High Court Rules 2016 r 1.5(1)(b)(iii).

length from the Registrar of the High Court who was selling the property pursuant to an order of this Court. Any issue with the sale process will not impeach the plaintiffs’ title to the property.

• [12] At the telephone hearing on 12 August 2022, Mr Wu submitted that his mother had not had a chance to appeal the outcome of her proceeding, CIV-2018-409-238, as it had not been clear on the face of the judgment issued by the Court that the judgment related to that proceeding.

• [13] I cannot accept that submission given the contents of the Court of Appeal decision in Wu v Li, where the Court, amongst other things, dismissed Ms Fan’s application for an extension of time to appeal against the substantive judgment of Gendall J dated 27 September 2019. The Court said:⁸
  • [13] Ms Fan was represented by competent solicitors in the High Court ... Although Ms Fan is now self-represented, it can reasonably be assumed that she would have been aware of the applicable time limits for pursuing any appeal against the substantive judgment. In cases of this nature, it is important that parties exercise their appeal rights timeously because of the obvious need for resolution to enable parties to move forward with their lives ...

• [14] The final point raised by Mr Wu was that he has separate proceedings under way in CIV-2022-409-283. In those proceedings, Mr Wu brought a claim against the registered proprietors of the property seeking to recover the property. That proceeding is a separate one to the judgment in which I made the order for sale. The judgment on the strike-out is released with this judgment and it will be seen that I have struck that proceeding out. Mr Wu has his rights of appeal in respect of that judgment separately from his rights of appeal in respect of my judgment of 5 August 2022.

• [15] As I said at the outset, my order is that Mr Wu’s application for a stay is

declined.

⁸ Wu v Li, above n 4 at [13].

Costs

• [16] The respondents to that application are entitled to costs on a 2B basis together with disbursements as fixed by the Registrar.

Associate Judge Lester

Solicitors:

Harmans, Christchurch (for Defendants)

Copy to:

Mr Y H Wu (self-represented Plaintiff )