Li v Yeung - [2024] NZHC 2352

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2473

[2024] NZHC 2352

BETWEEN
KAREN KAYAN LI

First Plaintiff

HUI LING (CATHERINE) KWOK
Second Plaintiff

AND

LAM YEUNG

First Defendant/Respondent

YUHONG (CATHERINE) GAO

Second Defendant

Hearing: On the papers

Appearances:

AME Parlane for the Plaintiffs

NJ Scampion and JAR Barrow for the First Defendant OV Collette-Moxon for the Second Defendant

Judgment:

21 August 2024

JUDGMENT OF FITZGERALD J

[As to waiver of privilege]

This judgment was delivered by me on 21 August 2024 at 4.00pm, pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

………………….……………

Solicitors: Parlane Law, Auckland
Tompkins Wake, Auckland Martelli McKegg, Auckland

To:N Scampion, Auckland J Barrow, Auckland
O Collette-Moxon, Auckland

LI v YEUNG [2024] NZHC 2352 [21 August 2024]

Introduction

[1] This judgment determines whether statements contained in an affidavit sworn by the second plaintiff, Ms Kwok, put certain privileged communications into issue in this proceeding and thus amounted to a waiver of privilege in those communications.

Background

[2] In a judgment delivered on 1 June 2023 (the judgment), I granted the plaintiffs’ application to continue this proceeding as a representative proceeding pursuant to r 4.24 of the High Court Rules 2016 (the Rules). I also declined the plaintiffs’ application for asset preservation orders against each of the defendants pursuant to s 522 of the Financial Markets Conduct Act 2013 (FMCA).1

[3] The underlying proceeding concerns what the plaintiffs allege to have been a “ponzi-scheme” that they and other members of their community invested in but lost their investments. The plaintiffs say that the defendants were central to the promotion of the scheme in New Zealand. They allege that the defendants engaged in misleading and deceptive conduct in relation to the scheme, in contravention of both the FMCA and the Fair Trading Act 1986.

[4] The defendants deny that they were central to the promotion of the scheme in New Zealand and say that, like the plaintiffs (and those other investors in the scheme whom the plaintiffs represent), they too lost considerable sums of money from investing in the scheme.

[5] Following delivery of the judgment, the defendants sought leave to appeal against that aspect of the judgment permitting the proceeding to continue as a representative proceeding.2 The defendants also sought a stay of the proceeding pending their appeal being determined (if leave to appeal were granted). The plaintiffs did not oppose leave to appeal or the stay being granted and on 18 August 2023, I made such orders by consent. The second defendant’s notice of appeal was filed in

1 Li v Yeung [2023] NZHC 1373.
2 Leave being required pursuant to s 56(3) of the Senior Courts Act 2016, given the judgment was a decision on an interlocutory application.

the Court of Appeal on 13 September 2023, and the first defendant’s notice of appeal was filed two days later.

[6] On 2 October 2023, the plaintiffs filed a notice of cross-appeal…

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 Li v Yeung

Details

AGLC: Li v Yeung [2024] NZHC 2352
Case: [2024] NZHC 2352
Decision Date: 21 August 2024

CaseChat Overview and Summary

Li v Yeung [2024] NZHC 2352 was a decision of the High Court of New Zealand, Auckland Registry. The case involved a dispute between the plaintiffs, Karen Kayan Li and Hui Ling (Catherine) Kwok, and the defendants, Lam Yeung and Yuhong (Catherine) Gao. The plaintiffs sought to continue their proceeding as a representative proceeding and to appeal certain aspects of a previous judgment, while the defendants opposed these applications. The central issue in this case was whether statements contained in an affidavit sworn by the second plaintiff, Ms Kwok, put certain privileged communications into issue, thereby amounting to a waiver of privilege in those communications.

The court found that Ms Kwok had indeed put certain privileged communications in issue. Specifically, the court found that Ms Kwok had put in issue advice concerning the time period within which the plaintiffs needed to file an application for leave to cross appeal and the reasons why their former lawyer confirmed they did not object to the defendants' applications for leave to appeal. However, the court concluded that the waiver of privilege did not extend to all the communications disclosed in an affidavit sworn by a lawyer from the plaintiffs' former law firm, Shine Lawyers. The court ordered that certain parts of the affidavit and its exhibits be redacted and that the redacted version be filed with the court. The court also set out a timetable for the filing of further submissions on the plaintiffs' application for leave to cross appeal and directed the parties to seek to agree on the costs of determining the waiver of privilege issue.

Orders