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Luo v Shiu

Luo v Shiu

Case [2021] NZHC 3564 21 December 2021

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-706

[2021] NZHC 3564

BETWEEN
ZHENLIN (ROBERT) LUO

First Plaintiff

KC BROTHERS LIMITED
Second Plaintiff

ANG YIP
Third Plaintiff

MANFEI COMPANY LIMITED

Fourth Plaintiff

AND

XIAOLING (ANNIE) SHIU

First Defendant

R & G PHOENIX LIMITED
Second Defendant

CSR POKENO LIMITED

Third Defendant

Hearing:
16-18 August, 27 September and 1 October 2021

Further submissions 18 and 21 October 2021

Counsel:

SRG Judd and Z Chen for Plaintiffs

D Bigio QC and Y Mortimer-Wang for Defendants

Judgment:

21 December 2021

JUDGMENT OF WHATA J

This judgment was delivered by me on 21 December 2021at 5.00 pm,
pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….

Solicitors: Righteous Law, Auckland
Pidgeon Judd, Auckland

LUO v SHIU [2021] NZHC 3564 [21 December 2021]

Introduction

[1] Zhenlin (Robert) Luo provided funds to Xiaoling (Annie) Shiu for the purchase of properties at 133, 87–89 and 119 Helenslee Road in Pōkeno. Separately from Mr Luo, Ang (Anny) Yip also provided funds to Ms Shiu to buy a property at 145C Helenslee Road. Mr Luo and Ms Yip both now claim that Ms Shiu deceived them into contracting with her and into providing those funds. They claim she fraudulently misrepresented to each of them that:1

(a)they would be partners together in the development of a wider area of land (the Pōkeno West Development) and would share in the profits of the whole of this development when she did not intend that this would occur (the Pōkeno West representation); and

(b)they had to pay real estate agent commission fees (the commission fee representation).

[2] Mr Luo and Ms Yip claim2 that but for these representations, they would not have agreed to fund the purchase of the affected properties at the prices then agreed for them. They seek the following relief, on the alternative bases of contractual misrepresentation under the Contract and Commercial Law Act 2017 (CCLA)3 and misleading conduct under the Fair Trading Act 1986 (FTA):4

1      A third misrepresentation that Ms Shiu deceived them about the true value of the properties was abandoned at the hearing.
2      Together with the second plaintiff company, KC Brothers Limited, an investment company wholly owned by Mr Luo; and the fourth defendant company, Manfei Company Limited (Manfei Company), also a property investment company, owned by Ms Yip and her business partner, Chofei Lam, as to a 50 per cent share each. For ease, in this judgment I primarily refer to Mr Luo’s and Ms Yip’s respective interests and claims as plaintiffs, and not expressly their associated interests through the second and fourth plaintiff companies, except where relevant.
3      The plaintiffs seek relief under s 35 of the CCLA. The CCLA came into force on 1 September 2017 after Ms Shiu had made several of the alleged misrepresentations (see s 2). However, s 6 of the CRA is identical in its effect: see sch 1, cl 17 of the CCLA. For…

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 [2021] NZHC 3564
Case: [2021] NZHC 3564
Decision Date: 21 December 2021

CaseChat Overview and Summary

Zhenlin Luo and Ang Yip (the plaintiffs) brought proceedings against Xiaoling Shiu, R&G Phoenix Limited, and CSR Pokeno Limited (the defendants) for misrepresentation and misleading or deceptive conduct in relation to the acquisition of various properties. The plaintiffs claimed that Ms Shiu had made fraudulent misrepresentations that induced them to contract with her and to provide funding for the purchase of the properties. They sought relief under the Contract and Commercial Law Act 2017 and the Fair Trading Act 1986. The defendants denied liability. The central issues were whether Ms Shiu had made the alleged misrepresentations and whether they had caused the plaintiffs any loss. The plaintiffs sought damages for the loss caused by the alleged misrepresentations. The court found that the commission fee deception was a qualifying misrepresentation of fact under the Contract and Commercial Law Act and misleading conduct under the Fair Trading Act. It found that Ms Shiu had made the Pōkeno West representation to the plaintiffs but that she never intended that they would be involved in the wider development at all. The court found that the commission fee deception and the Pōkeno West misrepresentation caused the plaintiffs loss. It awarded damages to the plaintiffs under the Fair Trading Act. It awarded Mr Luo $632,813.50 in respect of his 133 Helenslee Road claim, together with interest on the deposit sums from the date he paid them until the date they were repaid. It awarded him interest on the deposit sums paid by him in respect of the 87–89, 119 Helenslee Road properties, from the date he paid those deposits to the date Ms Shiu paid the settlement sum of $2.5 million. It also awarded him interest on the judgment sum of $632,813.50 until payment. It awarded Manfei Company $1.5 million, together with interest on that sum from the date of judgment until payment; and interest on the deposits Manfei Company paid prior to Ms Yip cancelling the 145C Helenslee Road joint venture agreement, from the date those deposits were paid until the date of judgment. CSR Pokeno was held liable for the judgment sums in respect of the 87–89, 119 Helenslee Road transaction and the 145C Helenslee Road transaction.

Orders