Mo v Tamaki Homes Limited - [2019] NZHC 3032

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2619

[2019] NZHC 3032

BETWEEN
QINGHUA MO and YU HUANG

First Plaintiffs

AND

TAMAKI HOMES LIMITED

First Defendant

ZHE YANG and JACKSON ING WEI LAW

Second Defendants

CIV-2019-404-1927

BETWEEN

QINGHUA MO and YU HUANG
First Plaintiffs

AND

ZHE YANG and JACKSON ING WEI LAW

Defendants

continued: …/2

Hearing: 14 and 15 November 2019

Appearances:

G S D Wiles and R Kaur for Plaintiffs I Hutchison for Defendants

Judgment:

20 November 2019

ORAL JUDGMENT OF ASSOCIATE JUDGE BELL

Solicitors/Counsel:
DX Law Ltd, Auckland – S Hou
Croftfield Law Ltd, Wairau Valley, Auckland G D Wiles, Barrister, Auckland
I Hutchison, Barrister, Auckland

MO and HUANG v TAMAKI HOMES LTD [2019] NZHC 3032 [20 November 2019]

…/2

CIV-2019-404-997

BETWEEN QINGHUA MO and YU HUANG
First Plaintiffs
D H & P M LIMITED
Second Plaintiff

AND ZHE YANG
First Defendant
YAN YANG
Second Defendant

CIV-2019-404-506

BETWEENZHE YANG and JACKSON ING WEI LAW
Plaintiffs

AND D H & P M LIMITED
First Defendant
QINGHUA MO and YU HUANG
Second Defendants

[1] On 14 and 15 November 2019, I heard three applications. After hearing each application, I gave a ruling. This decision gives those rulings.

The plaintiffs’ application for further discovery in CIV-2018-404-2619

[2] Zhe Yang and Jackson Ing Wei Law carry on business as property developers in Auckland. For some of their projects they received finance from the plaintiffs. I will accordingly refer to the plaintiffs as the financiers and the defendants as the developers. Tamaki Homes Ltd is a company of which the developers are directors. It is a vehicle through which they have carried out developments around Auckland. They also have a project management company, Vinjax Ltd.

[3] CIV-2018-404-2619 relates to a development at 12 Ropata Avenue, Point England, Auckland. In their amended statement of claim of 30 August 2019 the financiers say that they and the developers made an agreement in about July 2015, under which the financiers would take title to a townhouse to be constructed on a subdivided lot at 12 Ropata Avenue. Title was held in the name of Tamaki Homes Ltd. They plead that they would contribute $400,000, which would be applied towards the purchase of the property and the construction of five townhouses. Payment of the
$400,000 would give them an equitable interest in the property pending the completion of the subdivision. The developers were to obtain all the necessary consents and to construct the townhouses at their own cost. They were to complete the job by December 2016. The financiers say that they made payments totalling $409,000 between September 2015 and 19 April 2016. They made further contributions between May 2015 and June 2017 amounting to $995,000 and, in or around November 2016, they made further cash payments totalling $112,200. They say that all up their contributions come to $1,516,000.

[4] While they were to take one lot in the subdivision, they say that the defendants tried to…

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.

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Details

Case: [2019] NZHC 3032
Decision Date: 20 November 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Associate Judge Bell presided over three applications in two related proceedings. The plaintiffs, Qinghua Mo and Yu Huang, sought further discovery from the developers, Zhe Yang and Jackson Ing Wei Law, in the case of CIV-2018-404-2619. The plaintiffs alleged that they had financed a property development in Auckland, under an agreement with the developers, and sought further documentation to substantiate their claims. The developers, in turn, sought further discovery from the plaintiffs in the same proceeding, as well as in CIV-2019-404-1927, CIV-2019-404-997, and CIV-2019-404-506. They argued that the plaintiffs had not provided sufficient documentary evidence to support their claims. The central issue in these applications was the adequacy of the documentary discovery provided by both parties and the relevance of the documents sought.

The court found that the plaintiffs' application for further discovery in CIV-2018-404-2619 was partially successful. The defendants were ordered to provide a reconciliation of invoices and bank statements, as well as valuation reports and other relevant documents. The court noted the importance of clarifying the actual costs of the development, as well as the value of the property in question. The court also directed the defendants to provide legible copies of the documents already discovered and to disclose any valuation reports relating to the Ropata Avenue development.

As for the developers' application for further discovery in the same proceeding, the court did not order any additional discovery but invited both parties to file and serve supplementary affidavits of documents related to payments and receipts. The court emphasised the importance of providing documentary evidence to support their claims, as well as the potential consequences of failing to do so.

In relation to the developers' application under r 10.12, the court ordered that the four proceedings be heard together. The court found that there were sufficient overlaps in factual matters and credibility issues to warrant a joint hearing. The court acknowledged the financiers' desire for early resolution but emphasised the need for a thorough hearing of all the matters in dispute. The court set the joint hearing for three weeks beginning 10 May 2021, with one case officer and one Associate Judge to handle all proceedings.

In summary, the court partially granted the plaintiffs' application for further discovery, ordered the defendants to provide additional documents and legible copies of the already discovered documents. The court did not require any further discovery from the plaintiffs but invited both parties to provide supplementary affidavits of documents. Lastly, the court ordered that the four proceedings be heard together, emphasising the need for a thorough hearing of all the matters in dispute.

Orders