Keung v Connolly

[2023] NZHC 2381

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000301

[2023] NZHC 2381

BETWEEN

SENG BOU KEUNG (AKA) PAUL KEUNG

Appellant

AND

LEISHA MAUD CONNOLLY

Respondent

Hearing:	8 August 2023
Appearances:	S M Grieve KC and Mr Kenworthy for the Appellant W J Palmer and L C Elliott for the Respondent
Judgment:	29 August 2023

JUDGMENT OF GENDALL J

Introduction

[1]    The appellant, Mr Seng Bou (Paul) Keung (Mr Keung) appeals against a decision of Judge Zohrab in the District Court dated 23 June 2022 (the Judgment under appeal) granting summary judgment against Mr Keung in favour of the respondent, Leisha Maud Connolly (Ms Connolly).   Summary judgment was granted against   Mr Keung for payment of $49,000 plus interest as sought by Ms Connolly under an alleged loan arrangement between the parties. This appeal is opposed by Ms Connolly.

[2]    The principal issue in  this  proceeding  is  whether,  in  September  2020,  Ms Connolly advanced by way of a repayable loan to Mr Keung a total amount of

$90,000 (of which the $49,000 formed part) or whether, as Mr Keung alleges, this was

SENG BOU KEUNG (AKA) v LEISHA MAUD CONNOLLY [2023] NZHC 2381 [29 August 2023]

not a loan but rather an investment in a joint venture arrangement between the two of them.

[3]In the District Court, Judge Zohrab found that:

(a)Ms Connolly had loaned Mr Keung the $90,000 in question.

(b)The terms of this loan, being repayable upon demand and interest free until repayment was demanded, were set out in an email between the parties dated 28 September 2020.

(c)Subsequently, Mr Keung had made a number of part-payments towards satisfaction of the loan to the effect that, at the time of the hearing,  Mr Keung was liable to Ms Connolly in the sum of $49,000 plus interest from the date of demand, 29 October 2020, until the date of final payment.

[4]    On the present appeal, Mr Keung contends this is not a matter capable of resolution by summary judgment, largely because of what he maintains are clear factual disputes that exist and the need for credibility issues to be tested here through the full substantive trial process.

[5]In particular, Mr Keung raises three main issues:

(a)That Judge Zohrab in the District Court erred in granting Ms Connolly summary judgment in circumstances where Mr Keung was unrepresented at the time of the hearing in the District Court and where his request for an adjournment was not granted. Mr Keung’s relationship with his former solicitors at the time of the District Court hearing, it is said, had broken down and he was unable at the last minute to obtain alternative representation.

(b)That the District Court had adopted what was said to be an incorrect approach to summary judgment, making what were in essence merits

and credibility findings and wrongly purporting to resolve what were factual disputes on disputed affidavit evidence alone.

(c)That the District Court also erred in failing to identify circumstances which would have justified the exercise of the Court’s discretion to decline summary judgment and in failing to exercise its discretion accordingly.

[6]In response, Ms Connolly opposes this appeal and contends:

(a)The first ground of appeal regarding refusal of an adjournment, she says, is not a valid ground of appeal and needs to be disregarded here. In any event, it is Ms Connolly’s position that the circumstances faced by Mr Keung at the District Court hearing were clearly of his own making and did not warrant any adjournment or dismissal of the summary judgment application.

(b)Judge Zohrab in the District Court was correct to place weight on the contemporaneous documents which supported Ms Connolly’s claim here and to robustly assess the  evidence  filed by and on behalf  of  Mr Keung. The Judge’s approach was in line with established authorities and Ms Connolly maintains it resulted in the correct outcome.

(c)On the discretion issue, Judge Zohrab explicitly turned his mind to the circumstances raised by Mr Keung here and concluded there was no proper prejudice existing. Ms Connolly adds further that, although she does deny there was any prejudice to Mr Keung here as a result of the District Court decision, if she is wrong in this and there was in fact prejudice, in any event this was solely caused by Mr Keung himself. It is contended that accordingly, the high threshold for exercising the residual discretion in considering summary judgment in cases such as the present was not met in this instance.

Background facts

[7]    The context of Ms Connolly’s claim against Mr Keung for repayment of the alleged loan was an intimate personal relationship between the two of them. This commenced in about October 2018 and seems to have been breaking down at the time the disputed payments were made around September 2020. Subsequently, it is clear the relationship broke down completely and became a dysfunctional one. It does seem the personal relationship between the couple may have been an on and off one towards the end and came to a conclusion between around October 2020 and perhaps at the latest by mid-February 2021.

[8]    There is no dispute that on 27 and 28 September 2020, Ms Connolly transferred sums totalling $90,000 to Mr Keung. Whilst the nature of these payments is disputed between the parties, there is agreement that the total sums paid to Mr Keung for his own use at this time was $90,000.

[9]    What is clear also is that from 1 October 2020 until 4 February 2021 Mr Keung made 13 payments directly to Ms Connolly (which she says were part loan repayments, although Mr Keung disputes this). These payments totalled $38,000.

[10]   Going back a step, arrangements at the end of September 2020 for the $90,000 paid to Mr Keung it seems were initially largely verbal (although supported by some exchange of messaging) because of the personal relationship between the parties at the time. Nevertheless, Ms Connolly says she relied on several documents which she maintains supported Mr Keung’s and her agreement that the $90,000 was a repayable loan.

[11]   In response, Mr Keung contests Ms Connolly’s account of what was agreed. He maintains the payments totalling $90,000 made to him were not agreed to be a loan. Instead, he argues they were part of a joint venture arrangement which the couple had been discussing for some time relating in particular to a property at Frankleigh Street (Frankleigh) owned by a company Mr Keung controlled at the time. This contrasts with Ms Connolly’s position. She is adamant that the monies were paid to Mr Keung as a loan, that this is clearly supported by contemporaneous evidence, and she says this is not directly contradicted or explained by Mr Keung.

[12]   Ms Connolly’s position too is that the agreed loan of $90,000 was only made because Mr Keung was desperate at the time. In addition she says it was to be only for a short period of time and to contain an interest element. She accepts the terms of the loan were initially verbal but were subsequently detailed and confirmed in the email from Mr Keung to her, dated 28 September 2020. Further, Mr Keung, as I have noted, from 1 October 2020 to 4 February 2021 did make payments totalling $38,000, she says in part repayment of the loan. Ultimately, however, Ms Connolly says he failed to meet compromised terms regarding the loan which required payment of an agreed balance in full by 26 February 2021.

[13]   Ms Connolly’s position is that $49,000 of the reduced loan arrangement still remains unpaid together with interest thereon and costs.

District Court judgment of Judge Zohrab

[14]   Judge Zohrab’s 23 June 2022 judgment in the District Court as I understand it, followed a day and a half hearing there. The judgment issued six weeks after the hearing, is thorough and comprehensive. It totals over 150 paragraphs and appears to comprehensively consider all matters which were before the District Court. I am satisfied too it deals with each of the parties’ respective positions and it addresses all the considerable affidavit evidence and exhibits which were before the District Court.

[15]   Judge Zohrab in his careful and detailed judgment was emphatic in expressing the view that Mr Keung did not have a reasonably arguable defence to Ms Connolly’s debt claim. By way of example, amongst other things his Honour found in strong language he used in his judgment that the “bald assertions” raised by Mr Keung before him that he did not need a loan and regarding other aspects of his defence contentions were, amongst other things, “not credible”, “totally implausible”, simply “do not make sense” and are “bordering on farcical”.1

1      Connolly v Keung [2022] NZDC 8108. At [62], [71] and [134] of his 23 June 2022 judgment, Judge Zohrab respectively said also:

[62]      The volumes of material filed by Mr Keung as far as Frankleigh Street are concerned do not assist in undermining Ms Connolly’s evidence that the $90,000 was advanced as a loan.

[71]      Accordingly, what is clear from an analysis of the contemporaneous documentation is that no agreement had been reached for Ms Connolly to be investing in Frankleigh Street.

Legal principles

[16]   A general appeal against a decision of the District Court is by way of re-hearing, and after hearing the appeal the High Court may make any decision it thinks should have been made (ss 127 and 128(1)(a) of the District Court Act 2016). The role of an appellate court was discussed in Hosking Trailers Limited v HT 2017 Limited.2 In that decision at paragraph [14] Gault J confirmed that the approach to general appeals, including appeals against summary judgment, is as follows:

[14] This Court’s approach on a general appeal is settled, following the Supreme Court’s decisions in Austin, Nichols & Co Inc v Stichting Lodestar and Kacem v Bashir. The appellate court has the responsibility of considering the merits of the case afresh. The appellate court must be persuaded that the decision is wrong, but the weight it gives to the reasoning of the Court below is a matter for the appellate court’s assessment. Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.

[17]   It is true also that an appeal against a summary judgment decision is “essentially an appeal against the decision of the Court that it was satisfied that the defendant had no defence.”3

[18]   I turn now to the relevant summary judgment principles to be applied here. Those principles were summarised by the Court of Appeal in Krukziener v Hanover Finance Limited.4 There was no dispute before me regarding those principles.

Summary judgment principles

[19]   The relevant summary judgment principles as I note were referred to by the Court of Appeal in Krukziener v Hanover Finance Limited as follows:5

[134]    Mr Keung’s bald assertions that he did not need a loan from Ms Connolly and had ready access to funding…are not credible….

2      Hosking Trailers Limited v HT 2017 Limited [2021] NZHC 3559.

3      Re: Fidow [1991] 2 NZLR 605 at [605].

4      Krukziener v Hanover Finance Limited [2010] NZAR 307(CA) at [26].

5 At [26].

The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated…the Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility…in the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it.

[20]   In Pemberton v Chappell, Somers J at [2] commented on the object of the summary judgment procedure:

The general object of the rules about summary judgment is clear. It is to enable a plaintiff to obtain judgment where there is really no defence to the claim made, so to put an end to the spectacle of a worthless defence being raised and pursued for the purposes of delay.6

[21]Also in Pemberton v Chappell, at [3] Somers J clarified that:

In this context the words “no defence” have reference to the absence of any real question to be tried. That notion has been expressed in a variety of ways, as, for example, no bona fide defence, no reasonable ground of defence, no fairly arguable defence.

[22]   Finally, it is accepted that issuing summary judgment in appropriate cases is discretionary, although it has been held that the discretion is to be of the most residual kind.

[23]   Where a defendant presents a defence, this is not necessarily a bar to granting summary judgment. The Court in Pemberton v Chappell at [4] noted:

There may, however, be cases in which the Court can be confident – that is to say, satisfied – that the defendant’s statements as to matters of fact are baseless. The need to scrutinise affidavits to see that they pass the threshold of credibility, is referred to in Eng Mee Yong v Letchumanan [1980] AC331, 341, and in the judgment of Greig J in Attorney-General v Rakiura Holdings Limited (Wellington CP23/86, 8 April 1986).

[24]   It is clear too that a defendant is under an obligation to lay a proper foundation for any defence claimed by providing the Court with appropriate particulars and a reasonable level of detailed substantiation. A bald assertion without elaboration or

6      Pemberton v Chappell [1987] 1 NZLR 1.

detail is unlikely to raise an arguable defence for the purpose of resisting a summary judgment application. The robust approach available to a Court, which a number of authorities have mentioned, allows it to grant summary judgment even where arguably there may be possible suggestions of a defence on factual matters, provided that the lack of a tenable defence is plain on the material placed before the court.

First ground of appeal: allegation that the District Court erred in granting Summary Judgment in circumstances where Mr Keung’s previous lawyers had sought leave to withdraw.

[25]   At the outset of the hearing before the District Court, Judge Zohrab heard an application by Mr Keung’s previous lawyers, Saunders & Co, for leave to withdraw as his counsel and solicitors. This application had been signalled some time earlier and in the meantime Mr Keung maintained that he had made unsuccessful efforts to obtain alternative counsel for the summary judgment hearing.

[26]   Having heard argument on the issue, including Mr Keung’s opposition to the Saunders & Co application to withdraw, his honour granted leave to them to withdraw.

[27]   Mr Keung, as I understand it, then immediately sought an adjournment of the summary judgment hearing. This was declined.

[28]   His first ground of appeal before me, therefore, was that Judge Zohrab erred in declining his application to adjourn the summary judgment hearing. Mr Keung contends this compromised his defence, as he said he was both unprepared for the hearing and also he was without what was necessary material for the hearing before the Court.

[29]   In my view, there is nothing in this first ground of appeal. Mr Keung’s appeal does not seek to appeal the withdrawal order made by Judge Zohrab or, indeed, a Minute the Judge issued concerning evidence for the summary judgment application. The appropriateness or otherwise of the withdrawal order, therefore, is not a matter before me.

[30]   If Mr Keung has issues with his former counsel or with Saunders & Co then, as I see it, the appropriate avenue for him to seek recourse is either by way of complaint to the Law Society or separate proceedings against them for breach of contract or negligence. As I understand it, none of this has been pursued.

[31]   This whole proceeding first issued in the District Court by Ms Connolly, I understand in May 2021, had a long and convoluted history. Significant delays had been experienced and certainly substantial evidence  had  been  filed  by  and  for  Mr Keung by his lawyers at the time leading up to the summary judgment hearing. As I see it, alleged failures of former counsel which Mr Keung is now advancing in all the circumstances here do not provide a proper ground of appeal for Mr Keung.     Ms Connolly’s claim for summary judgment in my view cannot be further delayed or set aside for reasons first, which are wholly out of her control and secondly, which are entirely irrelevant to the question of whether a reasonably arguable defence existed to her claim against Mr Keung for repayment of an unpaid loan.

[32]   Further, the considerable additional material which Mr Keung has provided for this appeal, and which he endeavours without justification to suggest is new and relevant evidence that he was unable to put before Judge Zohrab, as I see the position, is quite inconsequential. None of it in my view would have provided any altered position here.7

[33]   In conclusion, I find this first ground of appeal has little substance. The circumstances faced by Mr Keung at the District Court hearing were entirely of his own making. In all the circumstances they did not warrant any adjournment of that long-standing hearing, nor for that matter were they such as to justify a dismissal of the Summary Judgment application itself here.

7      In this respect, and despite Mr Palmer’s objection on behalf of Ms Connolly to this evidence, I include in this category an affidavit from Yvonne Ballantyne dated 6 October 2021, an affidavit from Mr Keung dated 31 March 2022 (with exhibits comprising around 156 pages), and an unsworn statement from Mr Keung forwarded to the District Court and Mr Palmer on 8 March 2022, all of which I have considered.

Second ground of appeal: allegation that the District Court adopted an incorrect approach to Summary Judgment

[34]   On  this  aspect,  Mr Keung  contends  that  Judge  Zohrab’s  approach  to  Ms Connolly’s summary judgment application was in error for a number of reasons:

(a)Judge Zohrab wrongly focussed only on certain documentation in the contemporaneous evidence which Ms Connolly relied upon, without acknowledging that this was not determinative on its face and without identifying that Mr Keung’s explanations needed to be tested.

(b)The Judge, it is said, failed to adequately acknowledge or consider evidence which supported Mr Keung’s defence and in respect of which his explanations required testing.

(c)The Judge made factual findings on the merits and credibility issues rather than directing himself to the issue of whether there was evidence supporting an arguable defence.

(d)As part of his reaching findings on the merits, Judge Zohrab made those credibility findings against Mr Keung in favour of Ms Connolly (in particular where the arrangements regarding payment of the funds were largely oral and occurred at a time when the parties’ personal relationship was close to ending) without either of their evidence being properly tested.

[35]   Overall, Mr Keung’s broad contention therefore is that Judge Zohrab wrongly held first, there was no arguable defence and secondly, in reaching this conclusion the Judge had wrongly dismissed or failed to consider evidence which Mr Keung maintains supported his defence.

[36]   At this point I need to say that in general I consider Judge Zohrab made no such errors as are alleged here.

[37]Mr Keung’s main ground of opposition to summary judgment was that the

$90,000 funds transferred by Ms Connolly to him were in furtherance of a purported joint venture arrangement, in particular relating to the Frankleigh property. However, simply referring to “an arrangement” between parties as a joint venture is not sufficient to establish binding legal consequences. This is particularly the case, where as here there is a far more logical explanation as to the relationship between the parties, supported by contemporaneous records. In such a case the High Court of Australia has previously confirmed that an alleged joint venture thesis in these circumstances is simply not plausible.8 This was further confirmed in Zadeh v Jeihani.9 In the present case, Judge Zohrab reached a similar conclusion on all the large amount of evidence before him and I am satisfied he was correct to do so.

[38]   So far as Mr Keung’s allegation of a joint venture between he and Ms Connolly here is concerned, I accept from time to time there were discussions and perhaps imitations about a possible joint venture. But, despite this, there was no consistent evidence before the District Court, or indeed before this Court, as to the existence or continued operation of any joint venture as Mr Keung alleges. No information as to the fundamental terms of any such alleged joint venture, nor any specific evidence of its existence (such as a written contract or agreed correspondence referring to the joint venture) has been provided.

[39]   Overall, I find this second ground advanced by Mr Keung for this appeal is entirely without merit and must be dismissed.

[40]   I agree with Judge Zohrab’s conclusion that an order for summary judgment was appropriate here.

[41]   The fundamental position between these parties on all the credible evidence before both the District Court and this Court, as I see it, is:

(a)At times, it is true that the personal relationship between Ms Connolly and Mr Keung was a troubled one but there is no doubt that in late

8      John Alexander’s Clubs PTY Limited v White City Tennis Club Limited (2010) 4 BFRA 701 at [44].

9      Zadeh v Jeihani [2020] NZHC 1577 at [32].

September 2020 Mr Keung requested from Ms Connolly a payment of

$90,000. Ms Connolly’s evidence, supported, as I see it, by other evidence, was that Mr Keung was desperate and requested Ms Connolly to “bail him out” at the time. Clearly, he needed the $90,000 in part for payment of the critical legal fees outstanding at the time of approximately $10,000 and Court costs of approximately $65,000, pending appeal proceedings relating to his earlier bankruptcy.10

(b)An initial payment of $15,000 was made by Ms Connolly it seems on 27 September 2020, followed by $65,000 on 28 September 2020 and a last payment of $10,000 on 28 September 2020. None of these payments are disputed.

(c)Ms Connolly’s evidence is that Mr Keung agreed to repay the total

$90,000 advanced to him, including an amount of $2,250 for interest (to offset lost interest Ms Connolly had incurred by breaking a term deposit early) and this repayment of the short-term loan was to take place on 28 October 2020.

(d)An email dated 28 September 2020 is before the Court, purporting to be from Mr Keung to Ms Connolly, acknowledging payment of what he said was $85,000. This states:

Thank you for sending the $85,000 to help me out with my Court costs and cash flow. It’s the most heart-warming thing you have done for me and it means more than the world to me and, I know, you.

I personally will return the money to you within a month of today, with interest at 10% per annum for three months’ worth because I know you could’ve invested it for 90 days.

I know you [sic] keen to be part of Frankleigh St. If you are  I would welcome you to have half for this money, you would need to take half the bank loan of approximately $455,000.

10 From evidence before the District Court and this Court, including Mr Keung’s own emails of 24 September 2020 (to Ms Connolly and Ms Ballantyne), he said he was “under enormous stress”, and “his life is going to be on the line” in the appeal court case relating to his bankruptcy the following week, and he needed the $90,000 urgently.

(e)Later that same day, Mr Keung corrected himself as to the amount loaned, and sent a further email stating:

I have just seen it’s $90,000 not $85,000.

(f)As to the first 28 September 2020 email noted at (d) above, Mr Keung contends this was not an email  from  him  but  one  concocted  by  Ms Connolly for her own purposes. Judge Zohrab in his decision rejected this contention, on the basis of all the evidence before him, and I agree it was appropriate for him to do so. Mr Keung’s correcting email relating to the “loan” being $90,000 and not $85,000, and other evidence before the Court, in my view clearly supports Ms Connolly’s emphatic evidence that she did not write the 28 September 2020 email, it came direct from Mr Keung, and in it Mr Keung unequivocally confirmed the loan arrangement at a time when Mr Keung had said to Ms Connolly only a few days earlier:

I have until tomorrow to pay [amounts totalling $90,000] and…it’s just ironic how I’ve got myself in this bind and I do wonder if you would ever bail me out and I guess I found out…

This clearly indicated the considerable pressure Mr Keung was under at the time.

(g)In  a  subsequent  email  from   Ms Connolly   to   Mr Keung   dated 30 September 2020 she noted too that “I do not want my money involved in Frankleigh Street or any other property” negating any suggestion that the $90,000 was for a joint venture or for any purpose other than a simple loan. In my view, from all the accepted evidence, Mr Keung had effectively acknowledged this.

(h)After the $90,000 payment was made to Mr Keung he personally made the following repayment payments direct to Ms Connolly:

(i)       On 1 October 2020, $1,000;

(ii)On 6 October 2020, $4,000;

(iii)On 8 October 2020, $1,000;

(iv)     On 13 October 2020, $1,000; (v)         On 20 October 2020, $1,000;

(vi)     On 27 October 2020, $1,000;

(vii)On 29 October 2020, $10,000;

(viii)On 3 November 2020, $1,000;

(ix)       On 15 November 2020, $2,000; (x)     On 19 November 2020, $4,000;

(xi)     On 22 November 2020, $10,000;

(xii)On 27 November 2020, $1,000;

(xiii)On 4 January 2021, $1,000.

These payments total $38,000.

(i)In response to these repayments, Mr Keung has endeavoured now to argue that they were all payments made to Ms Connolly for other matters and had nothing to do with the $90,000 loan. This initial argument, however, is quite unsupported by any independent evidence (for example, relating to alleged payments of salary to Ms Connolly Mr Keung said were from his related company, notwithstanding the payments came direct from him).

(j)In a 2 October  2020  email  Mr Keung  acknowledges  he  sent  to  Ms Connolly, again he does not deny the $90,000 advance to him was a loan, but simply tries to challenge the date when it was to be repaid. Mr Keung says in this email:

I’m sorry but we agreed it would be repaid when I or we got finance and/or when I would sell a property, and you would help me do that.

And he confirms also relating to the $90,000:

…But as I said, I was under so much pressure at the time I just froze in the lounge and as we said I’d prefer something that reflects better our situation and provides more security for us both.

(k)Clearly,  as I see it, this was where the $90,000 payment was left on   2 October 2020. There was simply no demur from Mr Keung at this point that it was a loan, and also specifically he used “it would be repaid” language, highly unlikely if as he claims now the payment was a joint venture contribution. All this too was despite the emotional nature of the 2 October 2020 message at the time of the relationship breakdown between him and Ms Connolly.

(l)Subsequently, it seems around 21 December 2020, an email exchange took place between Mr Keung and Ms Connolly which it is accepted was as follows.

Mr Keung:

60k, this is as per your offer to me. Just need confirmation.

Ms Connolly:

Hi…well I think if we can agree on something like that, then that’ll be good – I would prefer it a bit more like 60 and some before Christmas if possible?...

Mr Keung:

If we can agree on $60k I’m happy yes/no?

Ms Connolly:

Okay, yes.

Mr Keung:

Okay agreed – get you what I can but everything 26th Feb.

(m)This exchange,  it  seems,  also  involved  a  lengthier  email  from  Mr Keung to Ms Connolly on 21 December 2020 which said in part:

I’m glad we made a decision to move on apart and to realise things are not changing.

I agree peace is the way forward.

I will get an agreement put in place to record our agreement of $60k. I will endeavour to get you another $10k prior to Christmas as a pre-payment – so just $50k to go.

I was willing to pay more if you simply waited for Cannon Hill to sell, but here we are and it’s clean.

Thanks for your patience and understanding.

…

Thanks for everything. Paul.

(n)Although it seems no $60k agreement was ever signed by the parties, on 1 January 2021 Mr Keung sent Ms Connolly a message which is before the Court which stated:

Leisha, I am sending you the $50k on settlement of Rugby, and the balance will be on the sale of Cannon Hill…I promised your mum Id look after ya.

Happy New Year. I’ll sort it.

Hope you’re well – missed your calls. I’m away. All the best for this year.

(o)This “Compromise Agreement”, referred  to  by  Mr Keung  in  his  21 December 2020 message to Ms Connolly, together with the

January 2021 messages, are also clearly as I see it after the fact confirmation of the $90,000 loan and repayment arrangement.

(p)On all this, Mr Keung does try to argue that, a part of this $90,000 being the $65,000 payment made to his account on 28 September 2020, was coded in his bank statement as an “investment” thus supporting his joint venture argument here. That fact, and the fact that other payments may have been similarly coded, in my view does not assist Mr Keung’s position to any great extent. First, certain of the payments are coded differently in Ms Connolly’s bank statements as “loans” and, secondly, in any event, her evidence before the District Court was that the various codings occurred at Mr Keung’s specific request and because he had instructed her that this was how he wanted them to be shown for his own reasons.11 None of this detracts from the essential position that the

$90,000 was a short-term repayable loan made to him at a time when he was under some considerable and acknowledged pressure to obtain these funds to enable his pressing and important appeal case to take place the next week.

[42]Ms Connolly, as I said, has long waited for repayment of the balance of her

$90,000 loan, a loan advanced as I see it solely to assist Mr Keung. As I see it, that balance must now be repaid. I agree entirely with Judge Zohrab that Ms Connolly made the loan to Mr Keung clearly at a time when he was in urgent need of the money, and the advance was made largely “to bail him out”. This was the case given the considerable pressure he claimed he was then under, presumably a claim specifically made to encourage the substantial “loan” he did receive at the time.

[43]   In my view, this is a relatively straightforward debt repayment issue on a loan made between this couple. Mr Keung has flooded both the District Court and this Court with a barrage of material, in his endeavours to show the arrangement was a

11     In her affidavit before the District Court dated 11 May 2021 on this aspect, Ms Connolly deposed at [59]:

Paul also told me to put into the reference ‘investment’ instead of ‘loan’, stating the banks would question him if it said loan. Due to the toxic nature of our relationship and psychological duress, I did what I was told by him.

joint venture rather than a loan. Much of this material is either entirely irrelevant or of marginal relevance to the issues to be decided here. Further, in my view nothing Mr Keung has himself provided to the District Court or to this Court, or that is contained in the additional affidavit evidence he has endeavoured to put forward from his friends, associates, and work contacts, where relevant, supports his position to any reasonable extent. The “evidence” from others largely simply repeats what Mr Keung has himself told them. All this is of limited value in all the circumstances here.

[44]   I conclude that the arguments Mr Keung endeavours to advance under this second ground in the in the present appeal are also without merit.

[45]   If, as Mr Keung has endeavoured to claim here, Ms Connolly may genuinely owe monies to him or to his associated entities for other matters, then of course he can exercise his proper remedies to seek to recover these from her outside the present claim for repayment of the loan. To date, he has not done so. No proceedings of any kind, as I understand it, have been brought by Mr Keung against Ms Connolly to recover monies allegedly owing to him or his interests.

Third ground of appeal: allegation that the District Court failed to exercise its discretion to decline Summary Judgment.

[46]   Under this ground, the submissions advanced for Mr Keung do not advance matters to any particular extent beyond merely contending that this is a case where the residual discretion to decline summary judgment should have been exercised. At best, it might be suggested that granting summary judgment tended to create an injustice, as it prevented Mr Keung at the time from obtaining further documentation to advance his defence.

[47]   This Court, however, in Wroxton Finance Limited v Bolton12, set out the applicable considerations for exercising this residual discretion and summarised that it was to be used sparingly and generally only in cases where it was needed to avoid circumstances where the summary judgment procedure was being used “oppressively” and therefore exercise of the discretion was needed to avoid “injustice”.

12     Wroxton Finance Limited v Bolton [2013] NZHC 1399 at[29] to [34].

[48]   I am entirely satisfied here that the present proceeding does not fall within the categories outlined in the Wroxton Finance decision. In his lengthy and careful decision, Judge Zohrab explicitly considered and discussed the personal relationship between the parties and the wider Family Court context here but, as I see it, this had no bearing on the present summary judgment proceeding. Further, Judge Zohrab directly considered Mr Keung’s contention that  he  had  a  counter-claim  against  Ms Connolly, and in doing so he noted that no counter-claim had been filed. He concluded no prejudice of any kind arose here for Mr Keung.

[49]   Finally, Judge Zohrab throughout was mindful of the fact Mr Keung was self-represented. As I see it he also took additional steps to ensure that Mr Keung was alive to all matters that needed to be addressed in his defence of the summary judgment application against him.

[50]   Overall, I am satisfied no error was made by Judge Zohrab in his careful and detailed decision on Ms Connolly’s summary judgment application. He did not err in deciding to proceed with the summary judgment hearing in the circumstances I have noted above, nor did err in granting summary judgment to Ms Connolly. Nothing that Mr Keung has endeavoured to put before this Court to bolster his appeal has made any difference here. Ms Connolly has succeeded in establishing that Mr Keung has no credible or arguable defence to her claim for repayment of the balance of the very short-term loan (monies which importantly have been outstanding for something approaching three years now) and there is clearly no real question to be tried here. This is a case where the District Court and this Court need not accept uncritically evidence which Mr Keung has endeavoured to advance which I agree is baseless and riddled with inconsistencies and inherently lacking in credibility. A realistic and robust approach to the simple loan arrangement reached between Ms Connolly and Mr Keung is required here.

Result

[51] For all these reasons this appeal is dismissed. The grant and order in the District Court for summary judgment against Mr Keung outlined at [1] above is confirmed.

Costs

[52]   Before me, both parties indicated they wished to have an opportunity to file further memoranda prior to costs being fixed.

[53]   At this point I need to indicate my view that this is an appeal which had little merit and arguably it should not have been brought. It has simply delayed matters further. Ms Connolly, the respondent, has succeeded in opposing the appeal and obviously is entitled to an award of costs which here might well, in all the circumstances I have outlined above, be considered as appropriately an order for increased costs.

[54]   With this indication I would expect that counsel may well be able to resolve the issue of costs directly between them. Failing this, then memoranda may be filed sequentially (five pages maximum) which are to be provided to the Court for a decision on costs to be made by a Judge or Associate Judge of this Court on the papers.

Gendall J

Solicitors:

Stephanie Grieve Kings Counsel for the Appellant Buddle Findlay for the Respondent