DAMIN LUN AND YONGCING KONG

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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…

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Details
Case
[2024] NZHC 2441
Decision Date

CaseChat Overview and Summary

In the High Court of New Zealand Auckland Registry, Mr Damin Lun brought an application for summary judgment and strike-out against Mr Yongcing Kong’s counterclaims and parts of his defence. Mr Kong opposed the application and also made an application for further and better discovery. The key legal issues were whether Mr Kong’s counterclaims had a reasonably arguable basis and if the parts of his defence and counterclaims sought to be struck out disclosed any reasonably arguable cause of action. Additionally, the Court had to determine if Mr Kong’s discovery application met the criteria for ordering further discovery.

The Court found that Mr Lun’s application for summary judgment should be dismissed because there were sufficient issues regarding the circumstances of the signing of the Settlement Deed that required trial. The Court also dismissed Mr Lun’s application to strike out parts of Mr Kong’s defence and counterclaims, holding that if the pleaded facts were assumed to be true, they disclosed a reasonably arguable cause of action against Mr Lun. Finally, the Court dismissed Mr Kong’s application for further and better discovery, finding it had become otiose as the discovery application’s purpose was to support Mr Kong’s defence against Mr Lun’s summary judgment application, which was now heard together.

The Court ordered that Mr Lun’s application for summary judgment and strike-out be dismissed and Mr Kong’s application for further and better discovery also be dismissed. The matter will proceed to trial. Each party was directed to attempt to agree on costs, with a process outlined for resolving any disagreements.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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