Liu v He - [2023] NZHC 1848

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-004-000468

[2023] NZHC 1848

BETWEEN
HONG LIU

First Plaintiff

HONG FUND LIMITED

Second Plaintiff

AND

HONGYAN HE

Defendant

Hearing: 12 July 2023

Appearances:

M G Locke for Plaintiffs P L Rice for Defendant

Judgment

17 July 2023

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 17 July 2023 at 4 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………..

Counsel/Solicitors:
M G Locke, Auckland P L Rice, Auckland
Turner Hopkins Solicitors, Auckland Alex Lee Lawyers Limited, Auckland

LIU v HE [2023] NZHC 1848 [17 July 2023]

[1] This proceeding has been set down for a three day trial commencing 9 October 2023.

[2] The plaintiffs have applied for leave to file a second amended statement of claim and for an order for the taking of an account under pt 16 of the High Court Rules 2016. Although the plaintiffs’ counsel, Mr Locke, initially submitted that compliance with existing pre-trial directions would be impracticable if leave were given to file an amended statement of claim, at the hearing on 12 July 2023 Mr Locke agreed that it was possible to maintain the current trial date if leave were granted.

[3] The defendant consents to the filing of a second amended statement of claim provided the trial proceeds on 9 October 2023 as previously set down and proposes revised timetable orders to enable the trial to proceed in October. The defendant opposes the application for an order for the taking of accounts. The defendant also seeks increased costs in relation to the plaintiffs’ application.

[4] Because the defendant consented, I gave leave to the plaintiffs to file a second amended statement of claim on the basis that the trial could proceed as scheduled on 9 October 2023. I also made revised timetable directions as sought by the defendant.

[5] I declined to make an order for the taking of accounts because I was satisfied that such an order was inappropriate. As Mr Locke accepted, the application for an account was really an application for further discovery. Although there was some discussion at the hearing about whether targeted orders for further discovery might be made by consent, in the event there was no agreement on such orders.

[6] This judgment sets out my reasons for dismissing the application for a taking of an account, explains why I am satisfied that orders for further discovery should not be made, and orders the plaintiffs to pay the defendant’s costs on a 2B basis with an uplift of 35 per cent.

[7] Because this judgment has taken longer than anticipated and, because of Matariki, will not be issued until 17 July 2023, I have adjusted the dates in the

timetable orders proposed by the defendant to provide further time for the parties to comply with the orders.

Relevant background

[8] This proceeding was commenced in March 2020. The first…

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 Liu v He

Details

AGLC: Liu v He [2023] NZHC 1848
Case: [2023] NZHC 1848
Decision Date: 17 July 2023

CaseChat Overview and Summary

Hong Liu and Hong Fund Limited, trading as Hong Fund, have sought leave to file a second amended statement of claim and for an order for the taking of an account in relation to a proceeding for the recovery of monies said to be owed by Hongyan He to Mr Liu. Ms He has opposed both applications. In addition, she has sought increased costs in relation to the plaintiffs’ applications. The court considered the applications on 12 July 2023. Because Ms He consented to the filing of a second amended statement of claim, the court granted leave to the plaintiffs to file it. However, the court dismissed the application for an account, noting that the plaintiffs had not established that Ms He had any liability to Mr Liu. The court also declined to make orders for further discovery, observing that the plaintiffs should have made that application much earlier in the proceeding. The court ordered the plaintiffs to pay the defendant’s costs on a 2B basis with an uplift of 35 per cent. The court also made revised timetable directions for the filing of documents and evidence up until the trial set down for 9 October 2023.

Orders