Dewaki v Kato - [2021] NZHC 1869

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-204-

[2021] NZHC 1869

BETWEEN
YUKARI DEWAKI

Plaintiff

AND

TAKESHI KATO

First Defendant

COSMIC MARKETING LIMITED
Second Defendant

RESORTISTS LIMITED

Third Defendant

Hearing: 19 July 2021

Appearances:

N Malarao and J Yao for the Plaintiff

H M Z Lanham and J A R Barrow for the Defendants

Judgment:

23 July 2021

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 23 July 2021 at 10:30am
pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
Meredith Connell (N Malarao/J Yao), Auckland, for the Plaintiff Greg Muller, Te Atatu Peninsula, Auckland, for the Defendant s

Copy for:
H M Z Lanham/J Barrow, Shortland Chambers, Auckland, for the Defendants

DEWAKI v KATO [2021] NZHC 1869 [23 July 2021]

[1] The defendants apply for particulars. The plaintiff opposes, saying that she should not be required to give particulars until after discovery.

[2] I do not require the plaintiff to give particulars now. The defendants are required to account to the plaintiff. They should first amend their statement of defence to show their account. The plaintiff will give particulars when she files a reply setting out which aspects of the account she does not accept. That will be after discovery.

What the case is about

[3] Mrs Yukari Dewaki, the plaintiff, a widow living in Yokohama, Japan, is suing in her personal capacity and as the representative of her late husband, Mr Kenji Dewaki. Mr Takeshi Kato, the first defendant, lives in Auckland. He is the director and shareholder of Cosmic Marketing Ltd and Resortists Ltd, the second and third defendants.

[4] As background, about twenty years ago Mr Kato promoted investment in property in New Zealand. The late Mr Dewaki attended a conference in Japan in 2002 when he was persuaded to invest in New Zealand properties. He signed a power of attorney in favour of Mr Kato. With funds provided by Mr Dewaki, Mr Kato purchased three properties in Auckland which were registered in Mr Dewaki’s name. He died in 2011. In 2014 Mrs Dewaki instructed Mr Kato to arrange for the sale of the properties. This case is about how Mr Kato acted as her agent on the sales of the properties and in investing the sale proceeds on her behalf. She says that he misrepresented how much the properties were sold for and has not properly accounted for the proceeds and investments made on her behalf. She sues in equity for breach of fiduciary duty and seeks an accounting, in restitution for unjust enrichment and in contract, for not handling the investments with care, diligence and skill. The first

cause of action is against Mr Kato only, the other two are against all the defendants. They deny any wrongdoing and say that they have properly accounted to her.

[5] Mr Kato arranged the sales of the properties, signing the agreements for sale and…

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 Dewaki v Kato

Details

AGLC: Dewaki v Kato [2021] NZHC 1869
Case: [2021] NZHC 1869
Decision Date: 23 July 2021

CaseChat Overview and Summary

The defendants in this case, Mr Takeshi Kato, Cosmic Marketing Ltd and Resortists Ltd, have applied for particulars of the plaintiff's claims. The plaintiff, Mrs Yukari Dewaki, opposes the application and submits that she should not be required to give particulars until after discovery. The court found that the defendants are not entitled to the particulars sought at this stage. Instead, the court ordered the defendants to amend their statement of defence to provide their account of their handling of the Dewakis' property and investments along the lines of their lawyers' April letter. The court further ordered the defendants to file and serve their affidavit of documents within 25 working days of the decision. The plaintiff should then file and serve a reply in which she must plead which parts of the defendants' account she accepts and which she rejects. Where she rejects, she must give full particulars of her claims for surcharge or falsification. The date for the reply is a target, not a deadline. The court also reserved leave to apply for further directions and asked counsel to confer as to costs.

The court's decision was based on the principle that a pleading must, in the individual circumstances of the case, state the issue and inform the opposite party of the case to be met. The court noted that particulars requests can add to delay and expense, and that the rule gives the court a discretion to achieve the object in r 1.2 of the High Court Rules: to secure the just, speedy and inexpensive determination of the proceeding. The court found that the defendants already have a good understanding of the case against them and have information and documents to answer Mrs Dewaki. They are unlikely to be inconvenienced if her challenge to their accounts comes in her reply instead of now. The court also considered Mrs Dewaki's position, who is litigating in a foreign jurisdiction, which is more arduous and expensive than bringing a case in a home court. The proceeding is being run in English, which she does not understand. It will be decided under foreign procedural rules and substantive laws she is not familiar with. The court needs to be wary of allowing interlocutory requisitions to stall a case.

Orders