Bei v Wang - [2019] NZHC 2860

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1164

[2019] NZHC 2860

BETWEEN
DUOYU BEI

Plaintiff

AND

CHAO WANG

First Defendant

AND

WILSON MCKAY TRUSTEE COMPANY (228904-10) LIMITED

Second Defendant

AND

MYST TRUSTEE LIMITED

First Third Party

AND

WEI KONG

Second Third Party

Date of hearing: 4 November 2019

Appearances:

DPH Jones QC for the plaintiff D J Clark for the defendants No appearance for third parties

Date of judgment:

4 November 2019

JUDGMENT OF JAGOSE J

The judgment was delivered by me on 4 November 2019 at 4.45pm.
Pursuant to Rule 11.5 of the High Court Rules

……………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
David P H Jones QC, Auckland Wilson McKay, Auckland

BEI v WANG [2019] NZHC 2860 [4 November 2019]

[1] As duty judge, I am to decide the plaintiff’s application for non-party discovery from Immigration New Zealand, which abides my decision.

Background

[2] In this proceeding, the plaintiff (“Mr Bei”) alleges the first defendant (“Mr Wang”) is liable to him for misrepresentations, in deceit, and for breach of fiduciary duty, for damages in the amount of $1.285 million. The allegations arise out of the parties’ entry in 2016 into a shareholding and loan agreement in relation to a nightclub business.

[3] The matter was set down for trial commencing 12 August 2019 before Walker J, at which Mr Wang was expected to attend to give evidence. In the event, Mr Wang could not attend, because he lacked the necessary visa to (re-)enter New Zealand. Trial was adjourned,1 for reasons including to accommodate Mr Wang’s application to give evidence in an alternative way.2

[4] Mr Bei subsequently brought a ‘wasted costs’ application: an application for increased or indemnity costs in relation to the adjournment for Mr Wang’s non- attendance in person. In opposition, Mr Wang asserted he had sought the required visa by application in June 2019 “at a visa office in Athens”. On that office’s later advice the application was declined, he “physically filed an application in the Shanghai visa office on 1 August 2019”. He was advised on 9 August 2019 it also was declined. Mr Wang says he has no records of those interactions.

[5]Mr Bei therefore brought the present application, seeking:

(a) All records held by, or in the control of, Immigration New Zealand relating to the immigration status of Chao Wang in New Zealand in 2019;

(b) All records (electronic, hard copy or otherwise), of or relating to any applications made in 2019 for any visa by Chao Wang to enter New Zealand and the processing of any such application(s); [and]

(c) What records (electronic, hard copy or otherwise), Immigration New Zealand would hold and/or have control of or access to if a visa application had been made by Chao Wang during 2019, a first such

1 Minute (no 4) of Walker J, 13 August 2019.
2 Evidence Act 2006, s 103.

application ostensibly being made in Athens in June/July and a second application…

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 Bei v Wang

Details

AGLC: Bei v Wang [2019] NZHC 2860
Case: [2019] NZHC 2860
Decision Date: 4 November 2019

CaseChat Overview and Summary

In the case of Bei v Wang, the plaintiff, Duoyu Bei, sought non-party discovery from Immigration New Zealand in relation to the immigration status of the first defendant, Chao Wang, and visa applications made by Wang in 2019. This application arose from a broader proceeding where Bei alleged Wang was liable for misrepresentations, deceit, and breach of fiduciary duty, among other claims. Wang was unable to attend the scheduled trial due to visa issues, leading to a trial adjournment and Bei's subsequent application for wasted costs. Bei sought detailed records from Immigration New Zealand concerning Wang's visa applications and immigration status in New Zealand during 2019.

The primary legal issue before the court was whether the documents sought by Bei from Immigration New Zealand qualified for discovery under Rule 8.21 of the High Court Rules 2016. The rule allows for discovery from non-parties if the documents may be or have been in their control and would have been discoverable if they were a party. The court had to determine if the documents in question supported or adversely affected another party’s case, as required by the rule. Additionally, the court had to consider whether the documents were relevant to Wang’s credibility or general character, given the nature of the allegations in the case.

The court found that the documents sought under categories (a) and (b) were relevant to the circumstances of Wang's departure from New Zealand, which was an issue in the pleadings. The court reasoned that if Immigration New Zealand were a party to the proceeding, it would have been required to discover these documents. However, the court did not allow the application for category (c) documents, which pertained to evidence rather than discovery. The court ordered Immigration New Zealand to file an affidavit and make the relevant documents available for inspection to counsel only, while reserving costs for later determination.

The court's decision allowed Bei's application for non-party discovery of certain documents from Immigration New Zealand, emphasizing the relevance of these documents to the case. This decision highlights the court's consideration of the specific circumstances of the case and the need to balance the interests of the parties with the broader principles of discovery in civil litigation.

Orders