Americhip, Inc v Dean - [2015] NZHC 700

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4247 [2015] NZHC 700

BETWEEN
AMERICHIP, INC

Plaintiff

AND

JASON CHARLES DEAN

Defendant

Hearing: 27 November 2014

Counsel:

L Theron for Plaintiff
D P H Jones QC for Defendant

Judgment:

14 April 2015

JUDGMENT OF KATZ J

This judgment was delivered by me on 14 April 2015 at 4:45 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Meredith Connell, Wellington
Winston Wang & Associates, Auckland

Counsel: D P H Jones QC, Auckland

AMERICHIP, INC v DEAN [2015] NZHC 700 [14 April 2015]

Introduction

[1] Americhip, Inc (“Americhip”) is an American company that designs,

develops and manufactures advertising and marketing technologies internationally.

[2] Americhip alleges that it employed the defendant, Jason Dean, as part of its operations in China between 2003 and 2012. It claims that during that period Mr Dean and his partner (now wife) Zita Chan systematically defrauded it of approximately US$10 million. They allegedly did this through a fairly elaborate scheme involving the submission of false or inflated invoices for manufacturing work done for Americhip by various companies in China.

[3] Americhip further claims that Mr Dean, who is a New Zealander, has used approximately NZ$2 million of the funds he embezzled to buy a house in Auckland (“Auckland property”). Americhip’s statement of claim includes four causes of action: deceit, breach of trust, knowing receipt (constructive trust) and “money had and received”. Damages are sought, as well as a declaration that Mr Dean holds the Auckland property as a constructive trustee for Americhip.

[4] Mr Dean applies to stay Americhip’s proceedings against him. He says that New Zealand is not the appropriate forum for the claims to be heard and determined. Rather, Americhip should issue proceedings against him in China, which is an available and more appropriate forum to resolve the issues in dispute. I must accordingly determine whether these proceedings should be stayed, on forum non conveniens grounds, to enable some or all of the issues in dispute to be litigated in China.

Background

[5] As a result of investigations it undertook into Mr Dean’s activities in China, Americhip concluded that he had systematically defrauded it of millions of dollars. As a result, Americhip’s Chief Executive Officer (Timothy Clegg), its private investigator (Ainsley van Leeuwarden) and other Americhip representatives flew to New Zealand and “confronted” Mr Dean and Ms Chan at the Auckland property, where they were then living. Americhip’s evidence is that Mr Dean admitted at that

meeting (which took place on 14 August 2013) that he had engaged in fraudulent conduct. He is said to have accepted that he would have to return the embezzled funds and transfer the Auckland property to Americhip. Mr Dean, however, denies that he made any admissions at the meeting.

[6] Following the meeting Mr Dean disappeared and Americhip was unable to trace him. Nevertheless, on 16 September 2013, Americhip issued proceedings against Mr Dean in this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 700
Decision Date: 14 April 2015

CaseChat Overview and Summary

Americhip, Inc, an American company, filed proceedings against Jason Dean, a New Zealander, in the High Court of New Zealand. Americhip claims that Dean, who worked for the company in China between 2003 and 2012, systematically defrauded it of approximately US$10 million. It further claims that Dean used approximately NZ$2 million of the embezzled funds to buy a property in Auckland. Americhip's statement of claim includes four causes of action: deceit, breach of trust, knowing receipt (constructive trust) and “money had and received”. Dean applied to stay the proceedings, arguing that China is the more appropriate forum to resolve the issues in dispute. The court was required to determine whether these proceedings should be stayed, on forum non conveniens grounds, to enable some or all of the issues in dispute to be litigated in China. The court held that the stay application should be dismissed. The proceedings would remain in New Zealand for the following reasons: firstly, neither party is from China; secondly, Americhip appears to have a fairly strong case; thirdly, proceedings in one jurisdiction only (New Zealand) will be more efficient and convenient; fourthly, it appears that the applicable governing law is most probably Californian law, rather than Chinese law; fifthly, the principal witnesses on the critical legal and factual issues, namely Americhip executives and Dean, are English-speaking; sixthly, there appears to be no reason why most or all of the Chinese based witnesses could not give evidence by audio visual link, given that their evidence is likely to be fairly brief and, to some extent, peripheral; seventhly, in terms of documents, the critical documents are likely to be documents either created by the parties, or exchanged by them. All or most of this evidence is likely to be in English and in the possession of the parties; eighthly, there do not appear to be any significant procedural advantages of this matter being litigated in China as opposed to New Zealand; ninthly, the only available asset against which a judgment could be enforced is located in New Zealand; and tenthly, there is a risk that a Chinese court may refuse to hear the claim on the grounds of forum non conveniens.

Orders