Andreassend v Liang - [2021] NZHC 337

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-002469

[2021] NZHC 337

IN THE MATTER A claim pursuant to a Reasonable Expectations Constructive Trust

BETWEEN

JAMES DAVID ANDREASSEND

Plaintiff

AND

HONG LIANG

First Defendant

AND

DING NI LAN, JI BO LIANG and HONG

LIANG as Trustees of a discretionary family trust call the HONG EDUCATIONAL

TRUST
Second Defendants

AND

DIAN MOY LAM

Third Defendant

Hearing: 1 March 2021

Appearances:

J E M Connell for First Defendant

G Kohler QC & T Nelson for Second and Third Defendants

Judgment:

2 March 2021

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 2 March 2021 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Connell and Connell, Auckland Shortland Chambers, Auckland Copy to:
Plaintiff

ANDREASSEND v LIANG [2021] NZHC 337 [2 March 2021]

[1] When this proceeding was called at 10 am on 1 March 2020, there was no appearance by the plaintiff, James David Andreassend.

[2] Because Auckland was in Level 3 lockdown for COVID-19 reasons, the Registrar attempted to contact Mr Andreassend by telephone when the hearing was called. That effort was unsuccessful.

[3] Since late November 2020, Mr Andreassend has failed to comply with Court orders and has failed to contact or to respond to telephone calls and emails from the Court and from counsel for the defendants.

[4] On the application of the defendants, and in accordance with r 10.8 of the High Court Rules 2016, I ordered judgment dismissing the proceeding. I also ordered costs in favour of the defendants on a 2B basis.

[5] This judgment records that decision and sets out the factual basis of the decision.

Summary history of proceeding

[6] Mr Andreassend filed his first statement of claim in this proceeding in November 2018. He claimed a remedial constructive trust in his favour in relation to certain property based on his de facto relationship with the defendant, Hong Liang.

[7] For the most part, Mr Andreassend has represented himself in the proceeding, although he was assisted by counsel for a time.

[8] The second defendants are the first defendant’s parents and the first defendant in their capacities as trustees of the Hong Educational Trust which, among other things, is the legal owner of a property at 123 Bassett Road, Auckland.

[9] The third defendant is the aunt of the first defendant and is said to be the account holder of bank accounts which hold funds claimed by Mr Andreassend.

[10] The defendants have filed statements of defence denying Mr Andreassend’s claims.

Related proceedings

[11] This proceeding is the third of three proceedings brought by Mr Andreassend following the break-up of his relationship with the first defendant. Previously, Mr Andreassend filed two separate proceedings in the Family Court under the Family Proceedings Act 1980 and under the Property (Relationships) Act 1976. In December 2018, those proceedings were transferred to the High Court. They were…

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.

Continue reading Andreassend v Liang

Details

AGLC: Andreassend v Liang [2021] NZHC 337
Case: [2021] NZHC 337
Decision Date: 2 March 2021

CaseChat Overview and Summary

Andreassend v Liang was a case heard in the High Court of New Zealand, Auckland Registry, where James David Andreassend, the plaintiff, sought a constructive trust based on his de facto relationship with Hong Liang, the first defendant. The second defendants were Hong Liang's parents and Hong Liang, as trustees of the Hong Educational Trust, and the third defendant was the aunt of Hong Liang. Andreassend filed his first statement of claim in November 2018, seeking a remedial constructive trust in relation to certain property. The defendants denied Andreassend's claims. This proceeding was the third of three brought by Andreassend following the breakdown of his relationship with the first defendant, the other two being filed under the Family Proceedings Act 1980 and the Property (Relationships) Act 1976. The proceedings were transferred to the High Court and subsequently allocated Court File numbers CIV-2019-404-2677 (the Family Proceedings Act claim) and CIV-2019-404-2678 (the Property (Relationships) Act claim).

The legal issues in the case were whether Andreassend's failure to comply with court orders and appear at the scheduled hearing justified the dismissal of his claims and the awarding of costs against him. Andreassend had been provided with considerable leniency and assistance by the Court, including having his claims reformulated by an Associate Judge. However, he failed to comply with the Court's orders and did not appear at the hearing on 1 March 2021. In the meantime, the defendants had been put to considerable expense and anxiety in defending the claims.

The Court found that it was in the interests of justice to give judgment dismissing the proceeding and to order costs on a 2B basis in favour of the defendants. The decision also applied to the related proceedings under the Family Proceedings Act and the Property (Relationships) Act.

Orders