Peng v Li - [2015] NZHC 2323

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4367 [2015] NZHC 2323

BETWEEN
ZHONGJIAN (TOM) PENG AND

CATHERINE CHAO Plaintiffs

AND

XIAOXI (RICHARD) LI First Defendant

YUAN (ROSEMARY) CHEN Second Defendant

Hearing: 22-25 and 29 June 2015

Counsel:

M A Karam and A V Shinkarenko for Plaintiffs
C R Andrews and E L Moore for Defendants

Judgment:

24 September 2015

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 24 September 2015 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Aaron Kashyap, Auckland
McVeagh Fleming, Auckland

PENG AND CHAO v LI [2015] NZHC 2323 [24 September 2015]

Introduction

[1] The plaintiffs seek in these proceedings to recover from the defendants the sum of $507,500, together with simple interest, or compound interest, and exemplary damages. This claim is martialled in seven causes of action:

(i)Breach of a joint venture contract over two properties having the postal addresses of 1/18 and 2/18 Inverary Avenue, Epsom.

(ii)A cause of action under the Fair Trading Act alleging false and misleading misrepresentations by the first defendant.

(iii) An action in deceit against the first defendant.

(iv) An action for unjust enrichment/money had and received. (v) Constructive trust.
(vi) Resulting trust.

(vii) Breach of fiduciary duty.

[2] In respect of the first three causes of action, the remedy of interest sought is pursuant to s 87 of the Judicature Act. In respect of the remaining causes, except the seventh cause of action, the plaintiff seeks compound interest, to be awarded exercising the Court’s equitable jurisdiction.

[3] In respect of the seventh cause of action, the plaintiff seeks a declaration that the first defendant holds on trust a 35 per cent interest in 1/18 Inverary Avenue (property one). It also seeks tracing orders.

[4] The two properties, property one and 2/18 Inverary Avenue (property two) are cross-leased on one section. The defendants are husband and wife and own property one. Property two was, at the time, owned by an elderly widow.

[5] The subject matter of the dispute is whether in fact the parties ever entered into an agreement to purchase property two, the defendants’ contributing property one and contributing to part of the purchase price in property two, with a view to then developing the whole section for profit.

[6] In support of that claim the plaintiffs seek a declaration that they have a 35 per cent interest in property one. The logic is that would be the plaintiff’s share of the total development.

[7] The plaintiffs are husband and wife, as are the first and second defendants. The two men met first in early 2009. Since they met they played soccer together socially and then became involved in various business dealings, including at least two joint ventures involving the purchase and development of properties for resale, one in 2010 in Avondale and another from 2011-2012 in Henderson. The first defendant (Mr Li) was the project manager for both of these developments and charged…

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 Peng v Li

Details

AGLC: Peng v Li [2015] NZHC 2323
Case: [2015] NZHC 2323
Decision Date: 24 September 2015

CaseChat Overview and Summary

Zhongjian (Tom) Peng and Catherine Chao brought a claim against Xiaoxi (Richard) Li and Yuan (Rosemary) Chen, seeking recovery of $507,500, interest, and exemplary damages. The plaintiffs alleged that the defendants owed them this sum as a result of a joint venture contract over two properties, one of which the defendants owned. The plaintiffs also alleged that Mr Li had acted deceptively in obtaining this sum from them. The defendants denied the allegations. The plaintiffs brought seven causes of action, for breach of contract, false and misleading misrepresentations, deceit, unjust enrichment, constructive trust, resulting trust, and breach of fiduciary duty. The court found for the plaintiffs on the first and third causes of action. The court found that there was a joint venture contract and that Mr Li had acted deceptively in obtaining the sum of money from the plaintiffs. The court did not find on the proprietary claims or the claim under the Fair Trading Act. The court also found against the defendants on their counterclaim. The plaintiffs were awarded damages of $507,500, interest, and costs. The defendants' counterclaim failed.

Orders