Bei v Wang - [2019] NZHC 223

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1164

[2019] NZHC 223

BETWEEN
DUOYU BEI

Plaintiff

AND

CHAO WANG

First Defendant

WILSON MCKAY TRUSTEE COMPANY

(228904-20) LIMITED as sole and corporate trustee of the WANG C TRUST

Second Defendant

Hearing: 12 February 2019

Appearances:

D P H Jones QC for the Plaintiff D J Clark for the Defendants

Judgment:

21 February 2019

INTERIM JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 21 February 2019 at 2.00pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:
Cook Morris Quinn, Auckland D P H Jones QC, Auckland Wilson McKay, Auckland

BEI v WANG [2019] NZHC 223 [21 February 2019]

[1] The defendants apply for particular discovery of documents alleged to be in the control of the plaintiff that have not been disclosed in his lists of documents. The application is opposed by Mr Bei.

The parties

[2] The plaintiff (Mr Bei) is an Auckland businessman. The first defendant (Mr Wang) is a company director and businessman. Mr Wang formerly resided in a property at Paratai Drive, Orakei (the property).

[3] The second defendant is the corporate trustee of a trust associated with Mr Wang known as the Wang C Trust (the Trust). From 22 May 2017, Mr Wang's girlfriend, Danting Luo, has been the sole director of the second defendant. She has been its sole shareholder since 23 May 2017.

[4] Mr Wang is the named settlor and appointer under the deed which constituted the Trust. He is also a final beneficiary, and members of his family, as nominated by him as appointer, are discretionary beneficiaries.

[5] The Trust, through its current and former trustees, is the registered proprietor of the property.

Background

[6] A company called Wang C Limited (the company) was incorporated in July of 2013. Mr Wang was the sole director and sole shareholder.

[7] The company acquired leasehold premises and established and ran a nightclub business known as Zeus Club, in Durham Street, Auckland.

[8] Mr Bei alleges that Mr Wang made various representations to him that induced him to invest money in the company and the nightclub business. He says that Mr Wang had knowledge and control of the company and the nightclub business, and that he was reliant on the information supplied by Mr Wang and the representations made by Mr Wang, in his decision to invest. He says that in the circumstances,

Mr Wang owed him a fiduciary obligation to act in Mr Bei's interests in and about the investment.

[9] Mr Bei made his investment in the company by a combination of acquiring shares and lending money to the company. He made the investments through a trust (the Olympians Trust), which entered into a shareholders agreement with Mr Wang and the company on 22 December 2016. The shareholders agreement documented an earlier understanding between the parties, reached in June 2016, under which Mr Bei would…

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 223
Case: [2019] NZHC 223
Decision Date: 21 February 2019

CaseChat Overview and Summary

In the case of Bei v Wang, the defendants applied for particular discovery of documents that the plaintiff had allegedly failed to disclose. The application was opposed by the plaintiff, Mr Bei. The court was required to determine whether there were grounds for believing that the plaintiff had not discovered certain documents that should have been discovered, and if so, whether an order for particular discovery was appropriate. The court considered the evidence presented by both parties and the principles governing particular discovery. The court concluded that there were grounds for believing that the plaintiff had not discovered certain WeChat conversations and ordered him to file a further affidavit providing details about the steps he took to retrieve the communications on his old cellphone. Regarding the redactions in the category 3 documents, the court found that some of the redactions were justified by litigation privilege or common interest privilege, while others were not relevant to the issues in the case. The court declined to order the disclosure of the unredacted copies of the emails with justified redactions. Costs were reserved for a later stage in the proceedings.

Orders