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…

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 Keung v Connolly

Details

AGLC: Keung v Connolly [2023] NZHC 2381
Case: [2023] NZHC 2381
Decision Date: 29 August 2023

CaseChat Overview and Summary

The appeal before the court is brought by Seng Bou (Paul) Keung (the appellant) against a decision of Judge Zohrab in the District Court dated 23 June 2022. The District Court granted summary judgment against the appellant in favour of Leisha Maud Connolly (the respondent). The appeal pertains to a sum of $49,000 plus interest, which the District Court ordered the appellant to pay to the respondent under an alleged loan arrangement between the parties. The principal issue is whether the money transferred by the respondent to the appellant in September 2020 was a loan or an investment in a joint venture arrangement. The appellant raises three main issues for appeal, namely, the denial of his request for an adjournment, the alleged incorrect approach to summary judgment, and the failure to exercise the discretion to decline summary judgment. The respondent opposes the appeal, arguing that the appellant's grounds for appeal are invalid and that the District Court's judgment was correct.

The court found that the appellant's first ground of appeal, regarding the denial of an adjournment, was without substance. The appellant's circumstances at the District Court hearing were of his own making and did not warrant an adjournment. The court also found that the appellant's second ground of appeal, alleging an incorrect approach to summary judgment, was without merit. The District Court's judgment was based on credible evidence and a robust assessment of the evidence filed by and on behalf of the appellant. The court agreed with the District Court's conclusion that an order for summary judgment was appropriate in this case. Lastly, the court found that the District Court did not err in failing to exercise its discretion to decline summary judgment, as the circumstances did not warrant such action.

In conclusion, the appeal is dismissed, and the grant and order in the District Court for summary judgment against the appellant is confirmed. The respondent is entitled to an award of costs, which might be considered as appropriately an order for increased costs due to the lack of merit in the appeal.

Orders