Dieulangard v Dyson - [2016] NZHC 346

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-373 [2016] NZHC 346

BETWEEN
PASCAL DIEULANGARD

Plaintiff

AND

JEREMY VERNON DYSON First Defendant

NELLY MICHELLE SYLVIE DYSON Second Defendant

Hearing: 4 February 2016

Appearances:

G Bogiatto for the Plaintiff
Defendants in person (part hearing)

Judgment:

4 March 2016

JUDGMENT OF MUIR J

This judgment was delivered by me on Friday 4 March 2016 at 10.00 pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:
G Bogiatto, Auckland

Copy to the Defendants.

DIEULANGARD v DYSON [2016] NZHC 346 [4 March 2016]

Introduction

[1] The plaintiff, Mr Dieulangard, seeks damages/compensation for lost investment monies totalling $259,000. He says that due to misleading and false representations he invested his savings with the defendants, Mr and Mrs Dyson. He says the Dysons told him that he would be part owner of a land holding in Helensville, Auckland (the property) and co-investor in the development of the property into an apartment and lifestyle complex. Neither purchase of the property nor the development proceeded.

[2] He also seeks recovery of an additional sum of $100,000 which he says was advanced to the Dysons by way of loan but never repaid.

[3] The case proceeded by way of a formal proof as the defendants had hitherto failed to engage with the Court process.1 On the date of the formal proof hearing they attended Court. I advised them that if they wished to defend the claim at that point they needed to seek the leave of the Court to do so. I adjourned while they conferred and sought advice. On their return they advised that they did not intend to participate further. They then left the court.

[4] I therefore proceed to consider the merits of Mr Dieulangard’s claim on his

formal proof application.

Background

[5] Mr Dieulangard is a French osteopath who resides in New Zealand periodically. While in New Zealand he befriended the Dysons, a married couple who were in the business of property management and development. The Dysons were initially his patients and Mrs Dyson was French, providing an additional connection. Mr Dieulangard often stayed with the couple while in New Zealand.

[6] From the outset Mrs Dyson was involved in the commercial aspects of their relationship, frequently talking to Mr Dieulangard in French about the property and
the development which was intended for it.

1 High Court Rules, r 15.9.

[7] In May Mr Dieulangard informally joined Mr and Mrs Dyson in partnership. The purpose of the partnership related initially to acquisition of the property. At the Dysons’ request Mr Dieulangard made a payment of $91,000 towards what he describes as “completing the purchase of the land”. There does not appear to have been any discussion as to how the balance of what was to be an approximately
$3 million purchase price was to be funded. Mr Dieulangard appears to have so trusted the Dysons and been so naïve in business matters that he was not on inquiry in this…

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 Dieulangard v Dyson

Details

AGLC: Dieulangard v Dyson [2016] NZHC 346
Case: [2016] NZHC 346
Decision Date: 4 March 2016

CaseChat Overview and Summary

The plaintiff, Mr Pascal Dieulangard, sought damages from the defendants, Mr and Mrs Jeremy Vernon Dyson, for losses he incurred from investments he made based on their alleged misleading and deceptive conduct. The defendants, who had previously been Mr Dieulangard's friends and business partners, were accused of representing that he would be part owner of a property in Helensville and co-investor in its development, when neither the purchase nor the development ever occurred. Mr Dieulangard also sought the return of a $100,000 loan that he claimed he made to the Dysons. The court had to decide whether the Dysons' conduct breached the Fair Trading Act 1986, whether they breached a fiduciary duty, and whether they were liable for the return of the loan. The court found that the Dysons' conduct was misleading and deceptive and in breach of the Fair Trading Act. The court also found that Mr Dyson breached a fiduciary duty owed to Mr Dieulangard. Finally, the court ordered the Dysons to repay the loan with interest. The court gave judgment in favour of Mr Dieulangard for the full amount of his investment, plus interest, and the return of the loan with interest. The Dysons were ordered to pay costs on a standard basis.

Orders