Andreassend v Liang - [2020] NZHC 1782

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-002469

[2020] NZHC 1782

BETWEEN
JAMES DAVID ANDREASSEND

Plaintiff

AND

HONG LIANG

Defendant

DING NI LAN, JI BO LIANG and HONG
LIANG as trustees of the Hong Educational Trust

DJAN MOY LAM

Third Defendant

Hearing: 17 October 2019

Appearances:

M Locke for the Plaintiff

J E M Connell and R J Hallas for the First Defendant G Kohler QC for the Third Defendant

Judgment:

23 July 2020

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 23 July 2020 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Davenports West Lawyers, Auckland Connell & Connell, Auckland

G Kohler QC, Auckland

ANDREASSEND v LIANG [2020] NZHC 1782 [23 July 2020]

[1] The second and third defendants apply (in a joint application) for orders dismissing the plaintiff’s statement of claim against them. They also apply, in the alternative, for orders that the plaintiff provide particulars of the statement of claim in accordance with the request made by a notice given on 24 May 2019, plus proper initial disclosure. The plaintiff, who is now self-represented, has no objection to providing the particulars sought, but only on the basis that he first obtains full discovery. He also says he has provided initial disclosure.

The statement of claim

[2] The plaintiff’s statement of claim was filed on 6 November 2018 against the defendants, who are:

(a)Hong Liang, who lived with the plaintiff in a de facto relationship that lasted, according to the plaintiff, from about December 2008 to mid- July 2015 (the first defendant).

(b)Ding Ni Lan and Ji Bo Liang, who are the first defendant’s parents, and the first defendant herself, all sued as the trustees of the Hong Educational Trust (the second defendants).

(c)Djan Moy Lam, who is the first defendant’s maternal aunt (the third defendant). She is sued as the named holder of an account (or accounts) at the National Bank.

[3] The statement of claim pleads a sole cause of action for relief against the defendants “by way of a remedial constructive trust founded on Lankow v Rose [2013] NZLR 271 [sic] principles”. The cause of action relies on a lengthy and discursive narrative of ‘hybrid’ allegations of fact and belief. The gist of the narrative laid out in the statement of claim can be summarised as follows:

(a)The plaintiff and first defendant worked together throughout the duration of their de facto marriage in a loose, informal partnership selling real estate. This was on the understanding that commission generated by and accumulated during the partnership, along with any

other assets derived from the commission, would be for “his and her” mutual benefit and held and/or invested for them to share in equally.

(b)A trust and a company were established at the time the plaintiff and first defendant began living and working together to serve as vehicles to receive and invest the commission. The…

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 [2020] NZHC 1782
Case: [2020] NZHC 1782
Decision Date: 23 July 2020

CaseChat Overview and Summary

The case of Andreassend v Liang involved a claim by James Andreassend against Hong Liang and others for a share of assets allegedly generated during their de facto relationship. The dispute centred around the validity of the claim, the adequacy of the particulars provided, and the necessity for further discovery. The court was required to decide whether the claim should be struck out, whether the plaintiff should provide particulars before or after full discovery, and whether an order for initial disclosure was warranted.

The court held that the claim against the third defendant should not be struck out, as there was a reasonably arguable basis for the claim despite the affidavit evidence provided. The court also ruled that the plaintiff should be allowed to re-plead his statement of claim, with the opportunity to provide particulars after full discovery. The court emphasised that the amended statement of claim must provide clear allegations that the defendants could respond to. Finally, the court ordered fresh initial disclosure in relation to the amended statement of claim.

The court made specific orders for an amended statement of claim to be filed by a certain date, with the possibility of general factual pleadings pending discovery. The court also reserved the right for the third defendant to seek a strike-out if full discovery showed no use of her bank account for commission. The court listed the case for a case management conference to review the issues in light of the amended pleadings. Costs on the application were reserved for later determination.

Orders