Lam v Mo - [2017] NZHC 997

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-1736 [2017] NZHC 997

BETWEEN
MAN FUNG LAM

YUET MING BETTY WONG MORAL DRAGON LIMITED Plaintiffs

AND

CHIU CHEUNG MO LILY YUET HA WONG First Defendants

SUNLINK DEVELOPMENTS LIMITED Second Defendant

PLIMMERTON HEIGHTS DEVELOPMENT LIMITED Third Defendant

STEVEN WEE HONG LEE Fourth Defendant

Hearing: 29 February-9 March 2016

Counsel:

R J B Fowler QC and P W F W Cheng for Plaintiffs

J R Parker and D M Consedine for First, Second and Third Defendants

P Barratt and S F W Learmonth for Fourth Defendant

Judgment:

16 May 2017

JUDGMENT OF WILLIAMS J

Table of Contents

Background and issues ........................................................................................[1] Formation of Sunlink Group.............................................................................[19] David Mo moves to New Zealand [19] Sunlink NZ Ltd and Dixon Street [23] Sunlink Developments Ltd and Plimmerton Heights Constructions Ltd [25] Sunlink Investments Ltd and Cuba Street [32] Inter-company lending [34]

LAM & ORS v MO & ORS [2017] NZHC 997 [16 May 2017]

Site visits and business trip [38] Joint venture terminated [41] Witness credibility issues ...................................................................................[42] The Lams’ contributions....................................................................................[47] Waysome Taxi [50] The Mo Tim payments [58] Payments by Betty Lam to Lily Mo – accepted payments [65] Proceeds of sale of Hong Kong apartment [67] Apartment mortgage [71] Conclusion [73] Payments by the Mos to the Lams ....................................................................[74] Written ‘agreements’ .........................................................................................[78] The 2003 memorandum [79] The 2007 meeting [84] Payments from Sunlink Developments [99] Salary promise? [104] The wider context: Jim Kan, Ron Luey, and Angel Wong ........................... [111] Jim Kan [112] Ron Luey [122] Angel Wong [131] Drawing the threads together – factual findings ...........................................[136] Joint venture and fiduciary obligations .........................................................[159] Introduction [159] Submissions [161] Analysis [165] Conclusion [181] The Steven Lee claim .......................................................................................[183] Submissions and evidence [183] Analysis [194] Orders and directions ......................................................................................[214]

Background and issues

[1]      The Sunlink Group comprised four companies: (a)     Sunlink (NZ) Ltd;
(b)      Sunlink Developments Ltd; (c) Sunlink Investments Ltd; and
(d)      Plimmerton Heights Construction Ltd.

[2] Since 1996, the Group has operated in the Wellington commercial and residential property markets. Sunlink NZ Ltd purchased and then onsold at a substantial profit a commercial property on Dixon Street in the Wellington CBD. Sunlink Investments Ltd purchased and then onsold at a profit a property at Cuba Street in the Wellington CBD. Sunlink Developments Ltd has nearly completed a residential subdivision in Plimmerton. Plimmerton Heights Construction Ltd built homes on some of the lots at the Plimmerton site. Only Sunlink Developments Ltd remains active. The profits it has produced are the subject of dispute in this proceeding.

[3] The sole director and registered shareholder of the companies within the Group is the first defendant Mo Chiu Cheung known in this litigation by his English name, David Mo.1 He and his wife Wong Yuet Ha (known in this litigation by her English name Lily Mo), are the first defendants.

[4] Lam Man Fung (known in this litigation by his English name, Tony Lam) and his wife Wong Yuet Ming (who uses the English…

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 Lam v Mo

Details

AGLC: Lam v Mo [2017] NZHC 997
Case: [2017] NZHC 997
Decision Date: 16 May 2017

CaseChat Overview and Summary

The High Court of New Zealand was required to determine the extent of the plaintiffs' interests in the defendant's Sunlink Group of companies and the obligations owed by the defendants to the plaintiffs as a result of that interest. The plaintiffs, Lam and Wong, were related by marriage to the defendants, Mo, and claimed to have contributed to and had an interest in the Sunlink Group, which comprised four companies. The defendants accepted the plaintiffs had an interest but only in Sunlink Developments Ltd, the company responsible for a residential subdivision in Plimmerton. The plaintiffs claimed an interest of 35 to 50 per cent in the Group, based on contributions they made and payments they received from the defendants. The defendants argued the plaintiffs' interest was no more than six per cent of Sunlink Developments Ltd. The court found the plaintiffs' interest to be 35 per cent of the Plimmerton joint venture, which incorporated Sunlink Developments and Plimmerton Heights Construction Ltd. The court also found the defendants owed fiduciary obligations to the plaintiffs in relation to the joint venture, including the obligation to account to the plaintiffs for 35 per cent of the joint venture's profit, subject to deductions for project or company expenses consistent with that fiduciary obligation. The court dismissed the plaintiffs' claims against the Group's solicitor, Steven Lee, finding there was no retainer between the solicitor and the plaintiffs. The court ordered an accounting of the Plimmerton joint venture and reserved costs until the final disposition of the matter.

Orders