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Huljich v McCaffrey

Huljich v McCaffrey

Case [2024] NZHC 361 28 February 2024

Admissibility of Evidence

Contract Law

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1923

[2024] NZHC 361

BETWEEN
CHRISTOPHER PETER HULJICH

Plaintiff

AND

PATRICK JOHN MCCAFFREY

Defendant

Hearing: 8 February 2024

Appearances:

D H McLellan KC and H P Short for Plaintiff

Judgment:

28 February 2024

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 28 February 2024 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Harmos Horton Lusk Limited, Auckland D H McLellan KC, Barrister, Auckland H P Short, Barrister, Auckland

HULJICH v MCCAFFREY [2024] NZHC 361 [28 February 2024]

Overview

[1] The plaintiff, Mr Huljich, has commenced proceedings against the defendant, Mr McCaffrey, originally seeking to recover certain assets, or alternatively compensation. The claim is that Mr McCaffrey obtained these assets by taking steps overseas as a recovery expert. Those recovery steps in turn relate to earlier and separate alleged fraudulent misappropriations by a Hong Kong broker, impacting many other investor victims from other countries.

[2] The defendant is a citizen of the United Kingdom, who is ordinarily resident in Dubai, United Arab Emirates. However, this proceeding was personally served on Mr McCaffrey in Nairobi, Kenya on 4 November 2022. The assets that are the subject of this proceeding are located overseas. Their precise location is unknown, but the most recent information indicates they are somewhere in England.

[3] Mr McCaffrey did not file any statement of defence, nor did he take any other step in this proceeding (such as protesting jurisdiction). This is an undefended application by way of formal proof pursuant to r 15.9 of the High Court Rules 2016.

[4]There are three causes of action pleaded in the statement of claim:

(a)Contractual claim: the first cause of action is a contractual claim seeking specific performance and damages in respect of an Assignment Agreement dated 26 September 2012.

(b)Conversion/Detinue: the second cause of action is for detinue or conversion.

(c)Constructive trust: the third cause of action alleges an institutional “common intention” constructive trust, based on expansion of the principles in Lankow v Rose.1

1 Lankow v Rose [1995] 1 NZLR 277 (CA).

[5] Overall, in respect of these three causes of action (and following an election of damages instead of specific performance),2 the plaintiff seeks judgment of:

(a)damages in the sum of NZD 12,892,040; and

(b)interest and costs.

Factual background

[6] On 2 August 1999, Mr Huljich advanced the sum of USD 1.5 million for the purposes of a long-term investment brokered by Mr Olliver, an investment broker acting for Ascent Ltd.

[7] In or about early 2000, the entirety of the investment fund was lost as a result of misappropriations by a Hong Kong-based investment broker (“Mr H”). The broker in Hong Kong fraudulently misappropriated investment funds, not only from the plaintiff and Mr Olliver, but also from a large number of other investor victims from many other countries. The total amount fraudulently misappropriated is thought…

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 Huljich v McCaffrey

Details

AGLC: Huljich v McCaffrey [2024] NZHC 361
Case: [2024] NZHC 361
Decision Date: 28 February 2024

CaseChat Overview and Summary

The plaintiff, Mr Huljich, has brought proceedings against the defendant, Mr McCaffrey, seeking to recover certain assets or, alternatively, compensation. The claim is that Mr McCaffrey obtained these assets by taking steps overseas as a recovery expert. The defendant did not file a statement of defence and did not appear at the hearing. The plaintiff seeks judgment of damages, interest and costs. The court had to decide if it had jurisdiction and whether the plaintiff could claim damages under the contractual cause of action. The court found that the plaintiff's claim in contract was valid and enforceable, and that it had jurisdiction to hear the claim. The court awarded the plaintiff damages of NZD 12,892,040, interest and costs.

Orders