Cui v Shuang - [2018] NZHC 2810

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000914

[2018] NZHC 2810

IN THE MATTER OF an appeal under s 124 of the District Court Act 2016

BETWEEN

LIYAN CUI

Appellant

AND

ZHENG SHUANG

First Respondent

JIN CHUAN

Second Respondent

Hearing: 16 October 2018

Appearances:

J G Donkin for Appellant S Moore for Respondents

Judgment:

31 October 2018

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 31 October 2018 at 10.30am
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Forrest Harrison, Auckland
Ong & Partners/S Moore, Auckland

CUI v SHUANG [2018] NZHC 2810 [31 October 2018]

Introduction

[1] The appellant, Ms Cui, appeals a decision given by Judge Harrison in the District Court at North Shore on 10 May 2018.1

[2]Judge Harrison:

(a)referred Ms Cui’s claim arising from an alleged residential tenancy agreement to the Tenancy Tribunal (the Tribunal) for determination;

(b)discharged a preservation order which Ms Cui had obtained on an ex parte basis;

(c)declined Ms Cui’s application for a freezing order over assets of the respondents, Ms Shuang and Mr Chuan; and

(d)dismissed Ms Cui’s application for particular discovery.

[3] By a notice of appeal dated 15 May 2018, Ms Cui appealed orders (a), (b) and (c). She has since abandoned her appeal in respect of order (b).

[4] Since Judge Harrison’s decision, Ms Cui has applied to the Tribunal under s 83(2) of the Residential Tenancies Act 1986 (the Act) seeking an order transferring the tenancy related claim back to the District Court. This step was taken on a without prejudice basis. The Tribunal has adjourned the hearing of this application until the present appeal is determined.2

Factual background – the substantive proceedings

[5] Ms Cui has deposed that in or around March 2016, she and her husband were introduced to Ms Shuang and Mr Chuan by a mutual associate, and that they discussed possible joint venture business opportunities. Those opportunities ultimately did not progress. While they were ongoing, she allowed Ms Shuang and Mr Chuan to move into a residential property that she owns in Campbells Bay, Auckland. Ms Cui says

1 Cui v Shuang [2018] NZDC 8656.
2 Cui v Shuang [2018] NZTT North Shore 4143102.

that Ms Shuang and Mr Chuan moved into the property on 3 April 2016, and that they agreed, verbally, to pay her rental of $1,100 per week while they lived in the property. She says that Ms Shuang and Mr Chuan lived in the property until 26 January 2017, but that they did not pay any rental. Given the possibility of a joint venture business arrangement, she says that she did not demand rental until around December 2016. She says that Ms Shuang and Mr Chuan agreed to pay a lump sum of $50,000 on 19 January 2017, but that they did not do so. She asserts that after the property was vacated, she incurred $1,000 in removing rubbish from…

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 Cui v Shuang

Details

AGLC: Cui v Shuang [2018] NZHC 2810
Case: [2018] NZHC 2810
Decision Date: 31 October 2018

CaseChat Overview and Summary

The appeal in Cui v Shuang [2018] NZHC 2810 was brought by Ms Cui against decisions of Judge Harrison in the District Court at North Shore. Ms Cui appealed three orders made by Judge Harrison, though she has since abandoned her appeal in respect of one of those orders. Ms Cui had commenced proceedings in the District Court against Ms Shuang and Mr Chuan, seeking damages for unpaid rent, property damage, and an outstanding loan. Judge Harrison referred Ms Cui’s claim for unpaid rent and damages to the Tenancy Tribunal, discharged a preservation order obtained by Ms Cui, and declined her application for a freezing order over the respondents’ assets. Ms Cui’s appeal was heard by Wylie J. The primary issues before the Court were whether the Tenancy Tribunal had exclusive jurisdiction to determine tenancy related issues in dispute between the parties, and whether there was a real risk that the respondents would dissipate their assets. In relation to the Tenancy Tribunal, Wylie J held that there is a reasonable argument open that the Tribunal does have jurisdiction to determine the issues in dispute between the parties, even though when it reaches a final conclusion on those issues it may not have jurisdiction to require the respondents to pay a sum in excess of $50,000. The Court rejected Ms Cui’s submissions that the Tribunal does not have jurisdiction to determine these issues. Wylie J held that the relevant statutory provisions give the Tribunal exclusive jurisdiction to determine matters which concern a residential tenancy, and that it is not affected by the monetary limit contained in the statute. In relation to the freezing order, Wylie J held that Ms Cui failed to discharge the onus that rested on her in establishing a real risk of dissipation. The Court held that the bald statements of belief expressed by Ms Cui did not provide solid grounds or circumstances from which a real risk of dissipation could reasonably be inferred. The appeal was dismissed in both respects.

Orders