Mo v Yang - [2021] NZHC 1792

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001927

[2021] NZHC 1792

BETWEEN
QINGHUA MO and YU HUANG

Plaintiffs

AND

ZHE YANG and JACKSON ING WEI LAW

Defendants

CIV-2018-404-002619

BETWEEN

AND

QINGHUA MO and YU HUANG
Plaintiffs

TAMAKI HOMES LIMITED

First Defendant

ZHE YANG and JACKSON ING WEI LAW

Second Defendants

Contd/…2

Hearing: 10 – 28 May 2021

Appearances:

G D Wiles and R P Kaur for Ms Mo, Mr Huang and DH and PM Ltd

I M Hutcheson and R Y Bae for Mr Yang, Mr Law, Ms Yang and Tamaki Homes Ltd

Judgment:

15 July 2021

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 15 July 2021 at 4:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

MO v YANG [2021] NZHC 1792 [15 July 2021]

CIV-2019-404-000506

BETWEEN
ZHE YANG and JACKSON ING WEI LAW

Plaintiffs

AND

DH and PM LIMITED

First Defendant

QINGHUA MO and YU HUANG

Second Defendants

CIV-2019-404-000997

BETWEEN

QINGHUA MO and YU HUANG
First Plaintiffs

AND

DH and PM LIMITED

Second Plaintiff

ZHE YANG

First Defendant

YAN YANG

Second Defendant

Table of Contents

Para No.

Introduction [1]

3 Huxley Place, Glen Innes [6]

Issues [16]

Analysis [17]

Result on Huxley Place project [37]

12 Ropata Avenue, Point England [54]

Disputed contributions to Ropata Avenue project [67]

Issues [78]

Analysis [79]

Result on Ropata Avenue project [101]

47 Union Road, Howick [109]

Issues [119]

Analysis [120]

Result on Union Road project [136]

8 Taurima Avenue, Point England [138]

Disputed contributions to Taurima Avenue project [148]

Issues [150]

Analysis [151]

Result on Taurima Avenue project [172]

Lot 4, 342 Bawden Road, Dairy Flat [178]

Issues [184]

Analysis [185]

Result on Bawden Road project [199]

Conclusion [203]

Introduction

[1] By order of Associate Judge Bell, these four proceedings were heard together with a direction that the evidence at the hearing would be used for all proceedings:

(a)CIV-2018-404-001927 (Huxley Place proceeding);

(b)CIV-2018-404-002619 (Ropata Avenue proceeding);

(c)CIV-2019-404-000506 (Union Road and Taurima Avenue proceeding); and

(d)CIV-2019-404-000997 (Bawden Road proceeding).

[2] The proceedings involve wide ranging disputes about a number of property developments in which funds have been invested without formal documentation.

[3] Zhe (Calvin) Yang and Jackson Wei Ing Law are property developers. Their projects included the purchase and redevelopment of properties at 3 Huxley Place, Glen Innes; 12 Ropata Avenue, Point England; 47 Union Road, Howick; 8 Taurima Avenue, Point England; and Lots 3 and 4, 342 Bawden Road, Dairy Flat (now 61 and 63 Follies Way). Mr Yang and Mr Law are the defendants in three of the proceedings, but are plaintiffs in the Union Road and Taurima Avenue proceeding. In the Ropata Avenue proceeding, the first defendant, Tamaki Homes Limited, is a company Mr Yang and Mr Law established to carry out the development. They also have a project management company, Vinjax Limited, of which they are both directors and shareholders. Mr Yang has a sister, Yan (Emily) Yang,…

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 Mo v Yang

Details

AGLC: Mo v Yang [2021] NZHC 1792
Case: [2021] NZHC 1792
Decision Date: 15 July 2021

CaseChat Overview and Summary

Qinghua Mo and Yu Huang (the plaintiffs) sued Zhe Yang and Jackson Wei Ing Law (the defendants) in four proceedings concerning property developments in which the plaintiffs had provided funds without formal documentation. The proceedings were heard together, and the evidence at the hearing was used for all proceedings. The proceedings involved wide-ranging disputes about a number of property developments in which funds had been invested without formal documentation. The defendants were property developers, and the projects included the purchase and redevelopment of properties at 3 Huxley Place, Glen Innes; 12 Ropata Avenue, Point England; 47 Union Road, Howick; 8 Taurima Avenue, Point England; and Lots 3 and 4, 342 Bawden Road, Dairy Flat (now 61 and 63 Follies Way). The plaintiffs did not record their arrangements in writing, did not agree on all the terms, and it was not clear that their agreements were enforceable under contract law. Some may be too uncertain to be given effect. The parties did not agree on the amounts of the financiers' funding. The developers said that the financiers had overstated their claims by more than $1 million. Some payments were made through intermediaries, some were in cash, and records of transactions were poor. The parties disagreed which projects some payments were for, and not all the projects were completed as originally planned. The plaintiffs said that they were substantially out of pocket and had not received what they were promised. The defendants acknowledged some liability but not as much as the plaintiffs claimed. The court had to determine whether there were any enforceable agreements between the parties. If there were, the court would have to determine what the terms of the agreements were, whether there had been a breach of the agreements, and what remedy, if any, was appropriate. The court found that there were no enforceable agreements between the parties. The parties obviously all proceeded on a mistaken understanding of the agreement, including whether it applied only to the provision of the mortgage advance or to the provision of the contributions as well. There were no contemporaneous documents evidencing the agreed terms of the investment. There were no WeChat messages or emails recording the agreement. The negotiations were entirely oral. The bank statements which evidenced the payment of sums of money did not assist in ascertaining the basis on which the money was paid. In those circumstances, and for the same reasons as expressed in relation to the other projects, the court was reluctantly drawn to the conclusion that no contract was therefore ever concluded. Because there was no concluded contract, the defendants did not act in breach of their agreement with the plaintiffs by failing to complete the development and disclose the costs associated with partial completion of the project. However, the court found that the plaintiffs were entitled to a restitutionary remedy of money had and received, as applied in the other projects. The court ordered that the defendants repay the plaintiffs the funds advanced on the basis of monies had and received.

Orders