Americhip Inc v Dean - [2014] NZHC 450

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004247 [2014] NZHC 450

BETWEEN AMERICHIP INCORPORATED Plaintiff

ANDJASON CHARLES DEAN Defendant

Hearing: 9 December 2013; further memoranda submitted on 21, 29, 31
January, 3 February 2014

Appearances: D J Chisholm QC and C O van Leeuwarden for Plaintiff
DPH Jones QC for Defendant

Judgment: 12 March 2014

JUDGMENT OF ELLIS J

Counsel/Solicitors:
D J Chisholm QC, Barrister, Auckland
C O van Leeuwarden, Barrister, Auckland
DPH Jones QC, Barrister, Auckland

AMERICHIP INCORPORATED v DEAN [2014] NZHC 450 [12 March 2014]

[1] The defendant, Mr Jason Dean, has applied under HCR 5.49(3) to dismiss this proceeding on the grounds that the Court lacks jurisdiction to hear it.

[2] The plaintiff, Americhip Incorporated (Americhip) is an American corporation that carries on business in a number of different countries.1 Americhip’s CEO, Mr Clegg, described Americhip’s business as “designing, developing and selling a wide array of marketing and advertising materials and promotional products”. It is relevant that, for the most part, Americhip tends to outsource the manufacturing aspect of its business to other companies.

[3] Between 2003 and 2012 it says it employed Mr Dean as part of its operations in China.2 Although he lived and worked in China during that period, Mr Dean was, and remains, a New Zealand citizen.

[4] Americhip alleges that, during the course of his employment, Mr Dean, with the assistance of Ms Zita Chan (his business associate and, more latterly, his partner) defrauded the company of approximately US$10 million.

[5] In about April 2013 Mr Dean, Ms Chan and their son Charlie returned to New Zealand. While there, they lived at a property at 15B Brighton Terrace, Mairangi Bay, which Mr Dean had purchased for approximately $2 million in cash. Americhip says that the property was purchased with Americhip’s misappropriated money.

[6] In August 2013, Americhip’s Chief Executive, Mr Clegg, visited New Zealand. The evidence is that during that visit (on 14 August) he and others visited Mr Dean’s home and confronted him and Ms Chan about the alleged fraud. They are said to have admitted embezzling Americhip’s funds and using it to buy the Brighton Terrace property. The evidence is that they promised to repay the money. But
instead, Mr Dean, Ms Chan and Charlie immediately fled the country.

1 The headquarters of Americhip Inc are in Los Angeles. The evidence in its present state discloses that Mr Dean was hired as a vice president of Americhip US, although for much of the time in issue he managed Americhip Trading (Shenzhen) Ltd which was what is known as a Chinese wholly-foreign owned enterprise. Americhip (Shenzhen) Ltd has now ceased operating.
2 As I understand it, whether or not Mr Dean was in fact an employee is a matter that will be at issue in the event that jurisdiction is found to exist.

[7] On 18 September 2013, Americhip filed proceedings in this Court against Mr Dean.3 In the statement of claim as originally filed there was only one…

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: [2014] NZHC 450
Decision Date: 12 March 2014

CaseChat Overview and Summary

In Americhip Inc v Dean, the High Court of New Zealand considered an application to dismiss proceedings on the grounds that the court lacked jurisdiction. Americhip, an American corporation, alleged that its former employee, Jason Dean, defrauded the company of approximately US$10 million during his employment in China. Americhip filed proceedings in New Zealand, where Dean had purchased a property using the embezzled funds. The court considered whether it had jurisdiction to hear the case and, if so, whether New Zealand was the appropriate forum for the trial. The court found that while there was a good arguable case that the claim fell within the provisions for serving claims outside New Zealand, New Zealand was not the appropriate forum for the trial. The court granted Dean's application to dismiss the proceedings. The case highlights the importance of considering both jurisdictional and forum issues when determining whether a court has the authority to hear a case.

Orders