He v Chen - [2024] NZHC 23

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-3369

[2024] NZHC 23

BETWEEN
YAO WEI HE

Plaintiff

AND

ZHIXIONG CHEN

Defendant

Hearing: On the papers

Counsel:

Plaintiff unrepresented

C Jiang and K Mills for Defendant

Judgment:

25 January 2024

JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 25 January 2024 at 4.15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Tompkins Wake, Auckland

HE v CHEN [2024] NZHC 23 [25 January 2024]

[1] In this proceeding, Mr He sues Mr Chen for breach of their alleged joint venture agreement relating to a business that exported goods to China. Mr He also claims for breach of fiduciary duty, in money had and received, and for Companies Act breaches relating to the joint venture, and further in respect of an investment he says he made with Mr Chen in Hong Kong, which has not been repaid. There has been very serious delay in determination of the proceeding, it having been brought in December 2014. By judgment dated 17 February 2023, Associate Judge Gardiner dismissed Mr Chen’s application to strike the proceeding out for want of prosecution, or alternatively because the causes of action are not arguable and the proceeding has become an abuse of process.1 As the Judge then observed, the trial is set for February 2024.

[2] Mr Chen has applied for orders that he and three other witnesses be permitted to give evidence during the trial via audio visual link (AVL) in accordance with the protocol for participation in remote hearings applicable in the Senior Courts. I use the term AVL broadly, in accordance with the definition at s 3 of the Courts (Remote Participation) Act 2010 (Act), to include attendance via “Virtual Meeting Room” (VMR) technology, rather than narrowly to suggest an audio visual link specifically established independently of the Court and trial participants via external telecommunications agency. Mr He opposes.

[3]This judgment determines Mr Chen’s application.

Jurisdiction

[4] There is no default position or presumption in favour of giving evidence in the ordinary way.2 AVL may be used for the participation of witnesses in a civil proceeding if a judicial officer or registrar determines to allow its use.3 Such a determination must be made in accordance with criteria set out in s 5 of the Courts Remote Participation Act 2010, and take into account whether or not the parties consent.4 Section 5 states the criteria for consideration as follows:

1      He v Chen [2023] NZHC 119.
2      V (CA492/10) v R [2011] NZCA 525 at n 8 citing R v Shone [2008] NZCA 313 at [28].
3      Courts Remote Participation Act 2010, s 7(1).
4      Section 7(3).

(a)the nature of the proceeding:

(b)the availability and quality of the technology that is to be used:

(c)the potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding, including—

(i)the ability…

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 He v Chen

Details

AGLC: He v Chen [2024] NZHC 23
Case: [2024] NZHC 23
Decision Date: 25 January 2024

CaseChat Overview and Summary

In the case of He v Chen, Mr He, the plaintiff, sued Mr Chen, the defendant, for breach of their alleged joint venture agreement concerning a business that exported goods to China. Mr He further claimed for breach of fiduciary duty, money had and received, and Companies Act breaches. The case also involved an investment Mr He made with Mr Chen in Hong Kong, which had not been repaid. The proceeding was originally brought in December 2014, and a trial was set for February 2024. Mr Chen applied for orders permitting him and three other witnesses to give evidence during the trial via audio-visual link (AVL), in accordance with the protocol for participation in remote hearings applicable in the Senior Courts. Mr He opposed this application.

The court considered the criteria for allowing evidence by AVL, which included the nature of the proceeding, the availability and quality of the technology, the potential impact on the effective maintenance of the rights of other parties, and any other relevant matters. Mr Chen's application was based on his residence in China, underlying health issues, and the impact of travel on his real estate development businesses. Mr He argued that the witnesses should be required to travel to New Zealand to give evidence in person, citing difficulties in assessing credibility, translation, and potential collaboration or coaching.

The court found that the proceeding was an ordinary civil proceeding dealing with financial liability between private individuals, and its nature did not suggest the desirability of personal attendance by witnesses. The court noted that VMR technology supporting the remote participation of witnesses was widely available, of good quality, and relatively easy to use. Mr He's concerns about collaboration and coaching appeared speculative, and the court did not consider that the witnesses being called via AVL would affect the court's ability to assess their credibility.

The court concluded that Mr Chen's reasons for being disinclined to travel to New Zealand did not require particular scrutiny, and any risk of prejudice arising through the proposed use of AVL appeared to be faced by Mr Chen, rather than Mr He. The court granted Mr Chen's application, permitting him and the other witnesses to give evidence during the trial via VMR, subject to certain conditions.

Orders