Chen v He - [2014] NZHC 2699

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-5671 [2014] NZHC 2699

BETWEEN
ZHIXIONG CHEN

Plaintiff

AND

YAO WEI HE Defendant

Hearing: 30 October 2014

Counsel:

NR Campbell QC for plaintiff
PD Sills for defendant

Judgment:

31 October 2014

JUDGMENT OF FAIRE J

Solicitors: Nigel L Fagan, Auckland (N Fagan)
BG Hong Law Firm, Auckland (B Hong)

Chen v He [2014] NZHC 2699 [31 October 2014]

[1] This proceeding has been allocated two days for trial to commence on

3 February 2015. Briefs of evidence have been served.

[2] The plaintiff, by counsel, gave notice of a challenge to a number of paragraphs contained in the defendant’s briefs of evidence in accordance with r 9.11 of the High Court Rules. The matter was not resolved. The plaintiff, on 14 August
2014, filed an application seeking an order that specific parts of the defendant’s brief

be struck out and therefore not read at trial.

[3] Counsel attended a conference before Asher J on 28 August 2014. The principal matter discussed was the adjournment of the previous trial date for the proceeding, which was 8 September 2014. His Honour, however, also dealt with an issue that had just arisen, namely the admissibility of evidence and recorded in his minute the following:

[5] There are two outstanding matters. The first is the argument over the admissibility of some of the evidence. It is possible that matter can be resolved now that new counsel has been instructed. Counsel should obviously confer on the issues of relevance to see if an agreement can be reached. However, a two hour fixture should be allocated for the hearing of that application to strike out parts of the defendant’s briefs of evidence. Possibly it could be set down on the morning of Monday, 8 September 2014 if that is not filled with some other fixture. However, that will be a matter for the schedulers.

[4] The application was allocated a fixture for 30 October 2014 by the scheduling office. No notice of opposition, as required by r 7.24, has been filed by the defendant. Belatedly, counsel for the defendant has advised by correspondence the defendant’s position in relation to the challenges. I have been provided with a copy of counsel’s letter of 28 October 2014. Counsel invite me to treat the letter as the notice of opposition. I proceed on that basis, although I record that the position is not entirely satisfactory for reasons which will become self-evident later in this judgment.

[5] Based on the defendant’s counsel’s letter, I record the challenges to the following paragraphs to the defendant’s brief of evidence are accepted, namely 80-
92, 125, 27, 30, 36(a) (recorded as 35(a) by mistake), 54(c), 54(e), 57, 59, 63, 64 and

144.

[6] Accordingly, there will be an order at the conclusion of this judgment that the paragraphs just mentioned be struck out from the defendant’s briefs and shall not be read at trial.

[7] Before dealing with the remaining challenges it is appropriate…

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 Chen v He

Details

AGLC: Chen v He [2014] NZHC 2699
Case: [2014] NZHC 2699
Decision Date: 31 October 2014

CaseChat Overview and Summary

Chen v He was a proceeding in the High Court of New Zealand, Auckland Registry, concerning a dispute over the terms of a $300,000 loan from Zhixiong Chen to Yao Wei He. Chen sought to recover the loan, which He admitted receiving but claimed was made on trust for a joint venture. The case involved a detailed examination of the admissibility of certain paragraphs in He's brief of evidence, which Chen challenged. The court heard the application on 30 October 2014, with counsel NR Campbell QC representing Chen and PD Sills representing He.

The legal issues centered around the admissibility of specific paragraphs in He's brief of evidence, particularly whether they were relevant to the terms of the loan or bore on other disputed matters not directly pleaded in the proceeding. The court had to decide if the evidence in question was pertinent to the claim of the terms of the loan or strayed into other issues such as fiduciary duties and misappropriation, which were not part of the current pleadings.

The court found that several paragraphs in He's brief were irrelevant to the terms of the loan and thus ordered they be struck out. These included paragraphs 66 to 79, which dealt with the incorporation of Hong Kong Dairy International Ltd, and paragraphs 93 to 124, which discussed the breakdown of the relationship between Chen and He and other related allegations. The court also struck out paragraphs 136 to 139 and 166 to 169, which went beyond simple allegations of debt payment to include set-offs not pleaded in the proceeding. Other paragraphs, such as 80-92, 125, 27, 30, 36(a), 54(c), 54(e), 57, 59, 63, 64, and 144, were similarly struck out for being irrelevant or amounting to submissions rather than evidence. The court reserved costs and allowed time for the parties to attempt to agree on them, with an order for memoranda if necessary.

In summary, the court ruled that specific parts of He's brief of evidence were not admissible as they did not pertain to the terms of the loan, which was the central issue in the proceeding. The court struck out the irrelevant paragraphs and reserved costs, directing the parties to attempt to agree on the costs before potentially filing memoranda.

Orders