Qu v Zeng - [2017] NZHC 315

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2256 [2017] NZHC 315

BETWEEN
JIA JUN QU

First Plaintiff

JIAN PING WANG Second Plaintiff

YAN QU Third Plaintiff

J M BUILDING MATERIALS COMPANY LIMITED

Fourth Plaintiff

FORMODA REAL ESTATE DEVELOPMENT COMPANY LIMITED Fifth Plaintiff

AND

JUN ZENG First Defendant

J & H DEVELOPMENT LIMITED Second Defendant

Hearing: 23 February 2017

Appearances:

G P Blanchard and C Jiang for Plaintiffs
No appearance from or for the Defendants

Judgment:

2 March 2017

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty on
2 March 2017 at 11.30 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

QU v ZENG [2017] NZHC 315 [2 March 2017]

Application for Summary Judgment on Notice

[1] This is an application for summary judgment, seeking judgment of a sum exceeding $12 million. I start by satisfying myself as to appropriate notice. The case proceeds upon the plaintiffs’ amended notice of interlocutory application seeking summary judgment. Notice of this hearing date was communicated directly to the first defendant by email dated 21 February 2017, advising him that the hearing of the matter is scheduled for 11.45 am on Thursday 23 February 2017.

[2] The case was called before Edwards J on 21 February, but there was no appearance by or for the defendants. Edwards J dealt with the application to vary freezing and ancillary orders, but not with the application for summary judgment. That was adjourned because there was not enough time for the process of evaluating an application for summary judgment to be satisfied on that day.

[3] The first defendant received a minute from Edwards J, being Minute No.3.That was a minute advising that the application was adjourned to the summary judgment list for 9.00 am on Tuesday 21 February.

[4] The defendants have not participated in these proceedings for some time.

Proof of indebtedness

[5] Proof of the claim was undertaken by senior counsel, Mr Blanchard, taking me through a 35 page (90 paragraph) updated memorandum introducing the case by a factual background, briefly covering the principles relating to the causes of action, arguing for liability, proving loss and seeking costs.

[6] This exercise was undertaken in order that the plaintiffs satisfy the Court that the first and second defendants have no defence. The Court must be satisfied there is no defence. In Pemberton v Chappel, Somers J explained the concept of “no
defence” as “absence of any real question to be tried”.1 A year later, Thorp J in R v

1 Pemberton v Chappell [1987] 1 NZLR 1 (CA) at [3].

Hellaby said the critical question will generally be where the Court is satisfied the

plaintiff’s case is unanswerable.2

[7] High Court Rule 12.12 provides that where the plaintiff satisfies the Court that the defendant has no defence the Court may give judgment.

Background Facts

[8] The first defendant, Jun Zeng, is the son-in-law of the first and second plaintiffs (Mr and Mrs Qu). He is the former…

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 Qu v Zeng

Details

AGLC: Qu v Zeng [2017] NZHC 315
Case: [2017] NZHC 315
Decision Date: 2 March 2017

CaseChat Overview and Summary

In the case of Qu v Zeng, the plaintiffs, Jia Jun Qu, Jian Ping Wang, Yan Qu, J M Building Materials Company Limited, and Formoda Real Estate Development Company Limited, sought summary judgment against the defendants, Jun Zeng and J & H Development Limited. The plaintiffs alleged that Jun Zeng, the son-in-law of Jia Jun Qu and Jian Ping Wang, and the company he co-owned with Yan Qu, had misused and laundered the moneys advanced to him by his parents-in-law for property developments. Instead, he allegedly funded a lavish lifestyle with the borrowed money. The plaintiffs sought judgment for the sum of $12,168,742, which included both the principal amount and interest, as well as costs on an indemnity basis.

The primary legal issue in this case was whether the plaintiffs had established that the defendants had no defence to the claims. The court found that the plaintiffs had provided sufficient evidence to demonstrate that Jun Zeng had breached fiduciary duties, contractual obligations, and acted deceitfully. The court was satisfied that there was no real question to be tried, and that the defendants had no defence to the claims. Therefore, the court granted the plaintiffs' application for summary judgment.

The court also considered the plaintiffs' request for indemnity costs, given that they were victims of fraudulent behaviour by Jun Zeng. The court found that the plaintiffs were entitled to indemnity costs, as the defendants had behaved badly and unreasonably. The court awarded costs to the plaintiffs in the amount of $252,519.89, plus disbursements of $209,749.55.

In conclusion, the court granted the plaintiffs' application for summary judgment and ordered Jun Zeng and J & H Development Limited to pay the plaintiffs the sum of $12,168,742, plus interest and costs on an indemnity basis. The court also allowed the plaintiffs to pursue proprietary claims against specific assets in the Court's equity jurisdiction.

Orders