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Dwyer v Zhang

Dwyer v Zhang

Case [2023] NZHC 1468 13 June 2023

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-599

[2023] NZHC 1468

BETWEEN
WILLIAM JOHN DWYER

First Plaintiff

AND

WILLIAM JOHN DWYER and FOSL

TRUSTEES LIMITED as Trustees of the Wavertree Trust
Second Plaintiffs

AND

SHASHA ZHANG

Defendant

Hearing: 15 May 2023

Appearances:

P J Woods and E B Nye for Plaintiffs

J I Taylor and C A Twyman for Defendant

Judgment:

13 June 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 13 June 2023 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

DWYER v ZHANG [2023] NZHC 1468 [13 June 2023]

[1] The first plaintiff, William Dwyer, and the second plaintiffs, Mr Dwyer and FOSL Trustees Ltd as trustees of the Wavertree Trust (the Trustees) are seeking summary judgment against Ms Zhang.

[2] Mr Dwyer and Ms Zhang were in a personal relationship but they have now separated.

[3] The first cause of action brought by the plaintiffs collectively concerns a deed of acknowledgment of debt and indemnity (the deed) Ms Zhang entered into with the plaintiffs, acknowledging an obligation to pay them the sum of $774,602.65. The plaintiffs seek judgment against Ms Zhang for the balance they say is owing under the deed of $727,602.65, along with interest1 and indemnity costs.

[4] Ms Zhang does not dispute she has a liability under the deed but says she has made payments to Mr Dwyer totalling $41,290 that have not been taken into account in the amount claimed. She also denies any liability for indemnity costs.

[5] In the second cause of action, Mr Dwyer alleges Ms Zhang has converted two Rolex watches that she gifted but has refused to deliver to him. He seeks possession of the watches or judgment in a sum representing their value.

[6] Ms Zhang does not deny she intended to gift the watches to Mr Dwyer but says, as there was no actual or constructive delivery of the watches to Mr Dwyer, there has been no effective gift of them to him.

[7]In respect to the claim on the deed, the issues are:

(a)Is the balance owing $727,602.65, as claimed by the plaintiffs, or the lesser sum of $686,312.65, as Ms Zhang contends?

(b)Is Ms Zhang required by the terms of the deed to pay the plaintiffs’ legal costs on an indemnity basis?

1 Although there was originally a dispute about whether interest was payable, this is no longer an issue.

[8] In respect to the Rolex watches, broadly speaking the issue is whether they were effectively gifted by Ms Zhang to Mr Dwyer. Counsel agree that issue turns on whether the watches were ever delivered, actually or constructively, by Ms Zhang to Mr Dwyer.2

Principles of summary judgment

[9] A plaintiff’s application for summary judgment is brought pursuant to r 12.2(1) of the High Court Rules 2016. It provides:

12.2Judgment when there is no defence or when no cause of action can…

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 Dwyer v Zhang

Details

AGLC: Dwyer v Zhang [2023] NZHC 1468
Case: [2023] NZHC 1468
Decision Date: 13 June 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiffs, William Dwyer and FOSL Trustees Limited as Trustees of the Wavertree Trust, sought summary judgment against Ms Shasha Zhang. The plaintiffs claimed a balance of $727,602.65 was owing under a deed of acknowledgment of debt and indemnity, as well as possession of or judgment for the value of two Rolex watches that they alleged had been gifted to Mr Dwyer by Ms Zhang but had not been delivered. Ms Zhang did not dispute her liability under the deed but argued that payments she had made to Mr Dwyer had not been taken into account in the amount claimed. She also denied any liability for indemnity costs. In respect to the Rolex watches, she did not dispute she intended to gift them to Mr Dwyer but argued there had been no effective gift of them to him as there had been no actual or constructive delivery. The court found that there was an arguable case that there was no completed gift of the watches, and the claim for summary judgment in respect of the watches was dismissed. On the first cause of action, the plaintiffs were entitled to summary judgment against Ms Zhang in the sum of $720,715.65, with interest from 16 December 2022 to the date of payment. The court found that clause 2.1 of the deed did not allow the plaintiffs to claim indemnity costs, and costs were reserved. The Registrar was directed to set the case down for a case management conference to consider how to deal with the claims in respect of which the plaintiffs had not obtained summary judgment.

Orders