Qi v Liu [2018] NZHC 2341 (6 September 2018)

Last Updated: 14 September 2018

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2018-419-0276 [2018] NZHC 2341

BETWEEN	JIUWEI QI Applicant
AND	SULI LIU Respondent

Hearing:	On the papers
Counsel:	S Y Lu for the Applicant
Judgment:	6 September 2018

JUDGMENT OF JAGOSE J

This judgment is delivered by me on 6 September 2018 at 3.30pm pursuant to r 11.5 of the High Court Rules.

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Registrar / Deputy Registrar

Solicitors:

Nolan & Lu, Hamilton

QI v LIU [2018] NZHC 2341 [5 September 2018]

[1] Jiuwei Qi brings without notice an originating application for freezing and ancillary orders, against the danger Ms Qi’s prospective judgment against Suli Liu in the District Court at Hamilton (CIV 2018-019-0991) will be wholly or partially unsatisfied if Ms Liu might abscond or her assets might be removed from New Zealand.

[2] Ms Qi’s prospective judgment against Ms Liu is founded in Ms Qi’s payment to Ms Liu in late June 2017 of $100,000, as a deposit to acquire Ms Liu’s café and restaurant business, on terms recorded in an ‘Agreement for Sale and Purchase of a Business’ on 1 July 2017. Ms Qi worked for Ms Liu in the business since May 2017, soon after Ms Qi’s arrival in New Zealand from China.

[3] Ms Qi contends the payment and agreement were obtained by misrepresentations made by Ms Liu, who further exerted undue influence over Ms Qi to obtain the payment and agreement. Ms Qi seeks the agreement be avoided, and the deposit (and interest) be repaid to her. The allegations are denied in prefatory correspondence between solicitors in August/September 2017, which also alleges Ms Liu required the $100,000 to pay toward a deposit on a residential property. However, the allegations and denials are each founded in disputed facts, which cannot summarily be determined.

[4] Ms Qi now observes the residential property, at 176 Rutherford Street in Te Awamutu, was recently offered for sale on the market, and is presently depicted by the selling agents as ‘sold’. Ms Qi understands Ms Liu is a Chinese citizen, in New Zealand on a work visa, whose only substantial New Zealand asset was the Rutherford Street property. She apprehends Ms Liu is selling her New Zealand assets with a view to return to China.

[5] Assuming Ms Qi can make out her factual allegations against Ms Liu, she has a good arguable case for the relief she seeks in the District Court.¹ There is therefore a sufficient prospect District Court will give judgment in Ms Qi’s favour, which would

¹ HCR 32.5(1)(b).

be enforceable by that Court in New Zealand.² Having regard to all the circumstances, I am satisfied there is a danger Ms Qi’s prospective judgment will be wholly or partially unsatisfied because Ms Liu might abscond or her assets might be removed from New Zealand.³

[6] Although the District Court has jurisdiction to make comparable freezing orders, it is said to lack jurisdiction to make the ancillary orders, which are necessary to identify third parties (solicitors for either party on the residential property transaction) who require to be bound to the freezing orders. I note the orders are intended only to freeze Ms Liu’s assets to the extent necessary to meet Ms Qi’s claim for $100,000 (plus interest and costs). In that respect, Ms Qi’s undertaking as to damages is said not to be onerous.⁴

[7] I therefore make the freezing and ancillary orders set out at paragraph 1(a)-(e) inclusive of Ms Qi’s 5 September 2018 application. I additionally direct:

(a) Ms Liu may deal with the assets covered by the freezing order for purposes set out at HCR 32.6(3)(a)-(c);

(b) unless then continued or renewed, the freezing order will cease to have effect after Wednesday, 19 September 2018;

(c) Ms Liu is to be informed she will have an opportunity to be heard by the court on Wednesday, 19 September 2018;

(d) Ms Liu has leave urgently to apply to the court to discharge or vary the freezing order on two working days’ notice to Ms Qi; and

(e) costs are reserved.




—Jagose J

² HCR 32.5(3).

³ HCR 32.5(4).

⁴ HCR 32.2(3)(b).