Hemi v Tyler - [2019] NZHC 1114

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-243

[2019] NZHC 1114

BETWEEN
HOHUA WARREN HEMI

Plaintiff

AND

MICHAEL STEPHEN TYLER

Defendant

Hearing: 20 March 2019

Appearances:

J A MacGillivray & F G Biggs for Plaintiff M D Branch & K F Shaw for Defendant

Judgment:

21 May 2019

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 21 May 2019 at 12:30 pm Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Tompkins Wake, Hamilton Harkness Henry, Hamilton

HEMI v TYLER [2019] NZHC 1114 [21 May 2019]

[1] On 8 August 2018, Mr Hohua Hemi (the plaintiff) commenced a proceeding in this Court against Mr Michael Tyler (the defendant). Service of the proceeding was effected on the defendant’s solicitors, who he had authorised to accept service on his behalf. On 21 September 2018, the defendant filed an appearance under protest to jurisdiction. The plaintiff now applies for an order to set aside the defendant’s appearance under protest to jurisdiction. The application is opposed by the defendant.

Background

[2] In his statement of claim the plaintiff sets out the background and context of his claim against the defendant, which arises from a wider dispute between himself and his business partner, Mr Robert Stone (Mr Stone). The plaintiff pleads two causes of action. The first alleges that the defendant has acted in breach of his duties as trustee for the plaintiff of shares in Autoterminal New Zealand Limited (ATNZ). The second alleges that the defendant has breached fiduciary duties owed to the plaintiff.

[3] The plaintiff and Mr Stone entered into a business relationship around 1991 for the purpose of purchasing used cars in Japan and exporting them to New Zealand and elsewhere in the world. The plaintiff says that his partnership with Mr Stone was on the basis that they each had a half share or interest in all partnership assets, and would operate all aspects of the partnership business together for their joint and equal benefit.

[4] The plaintiff says that his business partnership with Mr Stone is conducted through a complex structure of corporate entities incorporated in various jurisdictions around the world, all of which are ultimately beneficially owned by himself and Mr Stone equally. The plaintiff says that one of the corporate entities in the partnership structure is ATNZ, which was incorporated in April 2000 at his and Mr Stone’s direction. Its role was to sell and distribute cars imported into New Zealand from Japan on behalf of IBC Japan Co Limited (IBC), which was the first corporate entity established by the partnership, and which undertakes the core business of the partnership, buying and exporting used cars from Japan around the world including to New Zealand.

[5] The plaintiff says that another corporate entity beneficially owned by Mr Stone and himself is iCOMM International Incorporated (iCOMM), which was incorporated in January 2005 under the laws of the Philippines, and is based in…

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 Hemi v Tyler

Details

AGLC: Hemi v Tyler [2019] NZHC 1114
Case: [2019] NZHC 1114
Decision Date: 21 May 2019

CaseChat Overview and Summary

Hohua Hemi, the plaintiff, brought an action against Michael Tyler, the defendant, seeking orders that Tyler transfer shares in Autoterminal New Zealand Limited (ATNZ) to him and that Tyler be ordered to refrain from acting in breach of fiduciary duties he owes to the plaintiff. Tyler filed an appearance under protest to jurisdiction. The plaintiff applied to the court to set aside the defendant's protest to jurisdiction. The court was required to determine whether it had jurisdiction to hear the proceeding, and if so, whether New Zealand was the forum conveniens. The court held that the defendant had been validly served within New Zealand and so the court had jurisdiction to hear the proceeding. The court also held that New Zealand was the forum conveniens because there was a real and substantial connection between the parties and the shares in ATNZ, which are the subject of the plaintiff's claim, and New Zealand. The application to set aside the appearance under protest to jurisdiction was granted. The defendant was ordered to file and serve his statement of defence within 21 working days of the judgment. The plaintiff was also granted costs.

Orders