Lun v Kong - [2023] NZHC 1370

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-795

[2023] NZHC 1370

BETWEEN
DAMIN LUN

Plaintiff

AND

YONGCING KONG

Defendant

Hearing: 17 April 2023

Appearances:

L A O’Gorman KC and L C Sizer for the Plaintiff R E Harrison KC and B Norling for the Defendant

Judgment:

1 June 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application to set aside the defendant’s protest to jurisdiction]

This judgment was delivered by me on 1 June 2023 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Buddle Findlay (Luke Sizer/Z T P Sinclair), Auckland, for the Plaintiff
Norling Law (Brent Norling/Anja Cherkashina), Auckland, for the Defendant
Copy for:
Laura O’Gorman KC, Auckland, for the Plaintiff Rodney E Harrison KC, Auckland, for the Defendant

LUN v KONG [2023] NZHC 1370 [1 June 2023]

TABLE OF CONTENTS

Paragraph

Introduction [1]

Background [2]

Mr Lun’s application to set aside [5]

Affidavit of Damin Lun dated 20 October 2022 [7]

Affidavit of Yu Zheng dated 25 October 2022 [26]

Mr Kong’s opposition [30]

Affidavit of Yongcing Kong dated 1 March 2023 [31]

Reply affidavit of Damin Lun dated 15 March 2023 [47]

Legal principles [55]

Approach to analysis [57]

Personal jurisdiction and subject matter jurisdiction: [59]

Personal jurisdiction [59]

Subject matter jurisdiction [62]

Conclusions in relation to jurisdiction [74]

Forum non conveniens [78]

Is there a forum other than New Zealand which is clearly or distinctly
more appropriate?  [79]
Conclusion in relation to appropriate forum  [83]
Are there special circumstances requiring that the trial should
nevertheless take place in New Zealand?  [86]
Conclusion in relation to special circumstances  [88]

Result [90]

Orders [91]

Introduction

[1] Mr Damin (Alan) Lun (Mr Lun) has applied to set aside a notice filed by Mr Yongcing (Sam) Kong (Mr Kong) protesting the jurisdiction of the High Court to hear and determine the substantive proceeding concerning whether Mr Kong committed a breach of trust in relation to Mr Lun in respect of shares in an investment interest in the People’s Republic of China.

Background

[2] On 20 May 2022, Mr Lun first filed proceedings in New Zealand alleging a breach of trust by Mr Kong. An amended statement of claim was subsequently filed on 26 May 2022.

[3] On 15 July 2022, Mr Kong filed a notice of appearance protesting the jurisdiction of the High Court to hear and determine the substantive proceeding. Instead, he asserted that China is the more appropriate forum.

[4] On 27 October 2022, Mr Lun then filed this interlocutory application to set aside the notice of appearance.

Mr Lun’s application to set aside

[5] Mr Lun seeks orders setting aside Mr Kong’s notice of appearance protesting jurisdiction, making directions for further conduct of this proceeding, and for costs and disbursements.1

[6]The grounds on which the orders are sought are:2

1 Interlocutory application by plaintiff to set aside protest to jurisdiction dated 27 October 2022…

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 Lun v Kong

Details

AGLC: Lun v Kong [2023] NZHC 1370
Case: [2023] NZHC 1370
Decision Date: 1 June 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Mr Damin Lun brought a claim against Mr Yongcing Kong for a breach of trust in relation to shares in an investment in China. Mr Kong protested the jurisdiction of the New Zealand courts and filed a notice of appearance. Mr Lun subsequently applied to set aside the notice of appearance and for the trial to proceed in New Zealand. The court considered the legal issues of whether the New Zealand courts had both personal and subject matter jurisdiction over the dispute, and if so, whether the courts should decline jurisdiction on the basis of forum non conveniens. The court found that the New Zealand courts had both personal and subject matter jurisdiction over the dispute, as the trust obligations arose under New Zealand law and the witnesses and relevant documents were located in New Zealand. The court also found that the onus was on Mr Kong to establish that China was the appropriate forum for the trial, which he had failed to do. As such, the court granted Mr Lun's application to set aside the notice of appearance and for the trial to proceed in New Zealand. The court directed counsel to endeavour to agree on costs, and if no agreement was reached, the costs would be determined on the papers.

Orders