Mao v Hesketh Henry - [2022] NZHC 2084

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1055

[2022] NZHC 2084

BETWEEN
LIANSEN MAO

Plaintiff

AND

HESKETH HENRY

First Defendant

AND

HYUN BIN KIM

Second Defendant

AND

DUK YOUNG LEE

Third Defendant

Cont:/

Hearing: 24 February 2022

Appearances:

No appearance by Plaintiff Liansen Mao Plaintiff Jiawen Mao self-represented

F B Barton for Hesketh Henry

R D Butler and A M Cameron for Hyun Bin Kim and Duk Young Lee

K Perry and E Focus-Turk for Ara Kim/Cooper & Co Real Estate Limited

Judgment:

22 August 2022

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 22 August 2022 at 3:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Hesketh Henry, Auckland
MacKenzie Elvin Law, Tauranga Heaney & Partners, Auckland

MAO v HESKETH HENRY [2022] NZHC 2084 [22 August 2022]

AND CIV-2021-404-1475

BETWEEN

JIAWEN MAO

Plaintiff

AND

HESKETH HENRY

First Defendant

AND

ARA KIM/COOPER & CO REAL ESTATE LIMITED

Second Defendant

AND

HYUN BIN KIM

Third Defendant

AND
DUK YOUNG LEE

Fourth Defendant

Introduction

[1] This judgment relates to interlocutory applications made by the defendants named in two related proceedings seeking to strike out the claims brought against them. The first proceeding (CIV-2021-404-1055) was commenced in May 2021 by Liansen Mao, and the second (CIV-2021-404-1475) was commenced in July 2021 by Jiawen Mao.

The plaintiffs’ claims

CIV-2021-404-1055 — Liansen Mao

[2] In his statement of claim dated 19 May 2021, Liansen Mao (Liansen) claims damages totalling approximately $2.25 million, interest and costs from the law firm Hesketh Henry (the first defendant) and their clients Hyun Bin Kim (Kim) and Duk Young Lee (Lee). The statement of claim appears to have been prepared by or on behalf of Liansen, and without professional legal advice. It is difficult to follow and make sense of the statement of claim, as it fails to clearly set out the legal basis of the claim and fails to provide essential particulars including the dates on which the key events referred to are said to have taken place. Nevertheless the following summary attempts to set out what appears to be the basis of the claim.

[3] In his statement of claim Liansen alleges that he was the guarantor pursuant to a loan agreement between Kim and Lee as lenders and Yintian Co Limited (Yintian Ltd) as borrower. Security for the loan was provided by way of a mortgage registered against the title of a property at 31 Chester Avenue, in Auckland. He claims that as a condition of the loan, Hesketh Henry, Kim and Lee, stipulated that Yintian Ltd was not to be registered for GST. He claims that the defendants Kim and Lee subsequently charged interest and penalty interest on the loan, and that following default under the loan agreement a mortgagee sale of the Chester Avenue property was conducted by Hesketh Henry for the second and third defendants, with the property being sold on 2 February 2018.

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 Mao v Hesketh Henry

Details

AGLC: Mao v Hesketh Henry [2022] NZHC 2084
Case: [2022] NZHC 2084
Decision Date: 22 August 2022

CaseChat Overview and Summary

The plaintiffs, Liansen Mao and Jiawen Mao, brought separate proceedings against multiple defendants, including Hesketh Henry (a law firm), Kim and Lee (individuals), and Kim/Cooper & Co (a real estate agency), alleging various claims of negligence, breach of fiduciary duty, and breaches of the Fair Trading Act. The defendants filed interlocutory applications seeking to strike out the plaintiffs' claims or, alternatively, for security for costs. The court considered the applications, focusing on whether the claims were arguable, an abuse of process, or otherwise an abuse of the court's process. The court found that the claims were not reasonably arguable and were an abuse of process as they attempted to relitigate issues that had already been determined in previous proceedings. The court struck out all claims against all defendants and ordered the defendants to be awarded costs. The court directed the parties to file costs memoranda and set a timetable for determining the issue of costs.

Orders