DAMIN LUN AND YONGCING KONG

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-795

[2024] NZHC 2441

BETWEEN

DAMIN LUN

Plaintiff

AND

YONGCING KONG

Defendant

Hearing:

20 August 2024

Appearances:

Jason Goodall KC/Luke Sizer/Zar Sinclair for the Plaintiff

R J Hollyman KC/NG Lawrence/A Cherkashina for the Defendant

Judgment:

3 October 2024

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

Plaintiff’s applications for summary judgment on defendant’s counterclaims and for strike-out of parts of defendant’s statement of defence and

counterclaim;

Defendant’s application for further and better discovery.

This judgment was delivered by me on 3 October 2024 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:

Buddle Findlay (L C Sizer / Z T P Sinclair), Auckland, for the Plaintiff

Norling Law (B J Norling/A Cherkashina), North Harbour, Auckland, for the Defendant

Counsel:

Jason Goodall KC, Auckland, for the Plaintiff Robert J Hollyman KC, Auckland, for the Defendant

LUN v KONG [2024] NZHC 2441 [3 October 2024]

TABLE OF CONTENTS

Paragraphs

Introduction  [1]

Background  [2]

Mr Lun’s application for summary judgment and strike-out  [12]

Summary judgment in relation to Counterclaims  [13](a)

Settlement Deed  [13](b)

Limitation  [13](e)

Strike out parts of the Defence and Counterclaims  [13](f)
Settlement Deed – Counterclaims  [13](f)

Paragraph 7.1 of the Defence and Counterclaims  [13](g)

Second affirmative defence (at paragraph 11.1)  [13](k)
Third affirmative defence (at paragraphs 12.1 to 12.2)  [13](m)

Claim for relief against Mr Lun in respect of interests in shares not

held by him personally  [13](n)

Mr Kong’s opposition  [14]

Summary judgment in relation to Counterclaims  [14](a)

Strike out of parts of the Defence and Counterclaims  [14](e)

Legal principles  [15]

Summary judgment  [15]

Strike-out  [18]

Further and better discovery  [20]

Analysis  [23]

Mr Lun’s summary judgment application  [23](a)

Mr Lun’s strike-out application  [23](b)

Mr Kong’s discovery application  [23](c)

Whether there is a reasonably arguable basis for Mr Kong’s

Defence and Counterclaims  [25]

Legitimacy of the Settlement Deed  [29]

Mr Kong’s defences	[38]
Misrepresentation	[40]
Mistake	[41]
Non est factum	[42]
Alleged unfairness of the Settlement Deed	\	[43]

Various transactions allegedly not occurring under the Settlement Deed  [48]

Conclusion in respect of summary judgment  [49]

Strike-out  [50]

Paragraph 7.1  [51]
Paragraphs 14.4 and 15.3  [53]

Paragraphs 11.1, 12.1 and 12.2  [54]

Conclusion on the strike-out  [59]

Mr Kong’s discovery application  [62]

Conclusion on the discovery application  [65]

Result  [67]

Orders  [68]

Introduction

[1]    Mr Damin Lun (Mr  Lun)  seeks  summary  judgment  and  strike  out  on  Mr Yongcing Kong’s (Mr Kong) counterclaims and parts of his defence. Mr Kong opposes Mr Lun’s strike-out application and has made an application for discovery under which he seeks access to documents which he says are important to his defence of the summary judgment application.

Background

[2]    Mr Lun and Mr Kong were business partners together in New Zealand from 1998 to 2014.

[3]    Between 1998 and 2010, Mr Kong and Mr Lun incorporated various companies that carried on the business of chicken processing. This included…