Luo v Shiu - [2024] NZSC 79

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 30/2024
[2024] NZSC 79

BETWEEN	ZHENLIN (ROBERT) LUO First Applicant KC BROTHERS LIMITED Second Applicant ANG (ANNY) YIP Third Applicant MAN FEI COMPANY LIMITED Fourth Applicant
AND	XIAOLING (ANNIE) SHIU First Respondent CSR POKENO LIMITED Second Respondent

Court:	Ellen France, Kós and Miller JJ
Counsel:	J E Hodder KC for Applicants D R Bigio KC and Y Y Mortimer‑Wang for Respondents
Judgment:	24 July 2024

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

BThe applicants must pay the respondents one set of costs of $2,500.

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REASONS

Introduction

The applicants, Robert Luo, Anny Yip and associated entities, entered into joint venture agreements with the respondents, Annie Shiu and an associated company, CSR Pokeno Ltd. The applicants claimed in the High Court that they were induced to enter into the joint venture agreements because of two misrepresentations made by Ms Shiu.[1] Their claim succeeded in the High Court.[2] Whata J found the misrepresentations had been made in breach of s 9 of the Fair Trading Act 1986, causing the applicants loss justifying monetary compensation. The respondents appealed successfully to the Court of Appeal.[3] The Court found that the key representation had never been made.
[1]Compensation was sought on the alternative bases of contractual misrepresentation under s 35 of the Contract and Commercial Law Act 2017, and misleading and deceptive conduct under s 9 of the Fair Trading Act 1986.
[2]Luo v Shiu [2021] NZHC 3564 (Whata J) [HC judgment].
[3]Shiu v Luo [2024] NZCA 48 (French, Gilbert and Mallon JJ) [CA judgment]. The present applicants’ cross‑appeal in relation to costs was dismissed. The Court of Appeal subsequently issued a stay of part of the judgment on conditions pending determination of this application: Shiu v Luo [2024] NZCA 277 (French, Gilbert and Mallon JJ).
The applicants have filed an application for leave to appeal to this Court from the decision of the Court of Appeal. They say that the Court of Appeal in quashing the judgment of the High Court has impermissibly ignored the advantages of the trial Judge in assessing the evidence and making credibility findings; erred in its assessment of the evidence; and limited the protective reach of the Fair Trading Act. The application for leave is opposed by the respondents on the basis that the criteria for leave to appeal are not met.

Background

The applicants in their submissions describe the factual background as involving “some complexity”. The narrative is set out fully in the High Court judgment[4] and in the judgment of the Court of Appeal.[5] For present purposes it is sufficient to identify the following matters.
[4]HC judgment, above n 2, at [7]–[39].
[5]CA judgment, above n 3, at [7]–[43].
Ms Shiu is a property developer. She saw a development opportunity in the fast‑growing Pōkeno West area where consideration was being given to rezoning land from rural to residential. She bought a number of individual…

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 Luo v Shiu

Details

AGLC: Luo v Shiu [2024] NZSC 79
Case: [2024] NZSC 79
Decision Date: 24 July 2024

CaseChat Overview and Summary

In Luo v Shiu, the applicants sought leave to appeal against the Court of Appeal's decision that overturned the High Court's ruling in their favour. The applicants claimed they were induced to enter joint venture agreements based on misrepresentations made by the respondents. The High Court found the misrepresentations were made in breach of the Fair Trading Act 1986, awarding compensation. However, the Court of Appeal overturned the decision, finding the key representation had never been made. The applicants argued the Court of Appeal erred in its assessment of the evidence and limited the scope of the Fair Trading Act. The Court considered whether the appeal raised questions of general importance or a substantial miscarriage of justice.

The Court found that the proposed appeal did not raise any questions of general or public importance or of general commercial significance. The Court of Appeal had undertaken a careful and reasoned analysis of the evidence, noting the advantages of the trial Judge in assessing credibility. The Court's approach was in line with the principles established in Austin, Nichols & Co Inc v Stichting Lodestar. The Court also found that the applicants' argument regarding the Fair Trading Act was not sufficient to constitute a miscarriage of justice. The Court concluded that the criteria for leave to appeal were not met.

The application for leave to appeal was dismissed. The applicants were ordered to pay one set of costs of $2,500 to the respondents.

Orders