Shen v Ossyanin - [2018] NZHC 3385

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-00855

[2018] NZHC 3385

BETWEEN
ZHAOWU SHEN

Plaintiff

AND

ANDREY YURIEVICH OSSYANIN AND TATYANA OSSYANINA

First Defendant

HARRINGTON PROPERTY INSPECTIONS LIMITED

Second Defendant

Hearing: 3 – 7, 11 – 12, 14 September and 17 December 2018

Counsel:

A Sharp and C Huang for the Plaintiff

R J Macdonald and M Cherrington for First Defendant

Ruling:

18 December 2018

RULING OF WHATA J

This judgment was delivered by me on 18 December 2018 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Jesse & Associates, Auckland
MBC Law Limited, Auckland

SHEN v OSSYANIN [2018] NZHC 3385 [18 December 2018]

[1]Mr Ossyanin seeks permission to offer further evidence and to:

(a)call Andreus Mitalaukis;

(b)recall himself; and

(c)recall Anton Naoumov.

[2] The application in relation to Mr Mitalaukis is not opposed, subject to the Court being satisfied that he was timeously appraised of the date of the hearing and steps were taken timeously to secure his attendance at the hearing and, further, that any wasted costs occasioned by a further hearing are borne by Mr Ossyanin.

[3] The plaintiff, however, opposes the balance of the application as it relates to the production of “contemporaneous records of invoices and payments”.

Background

[4] This case is essentially about whether Mr Ossyanin misrepresented to Mr Shen that the house sold by him to Mr Shen did not ‘leak’. One of the key factual issues is whether, at a meeting on 1 November 2013, Mr Shen asked Mr Ossyanin the following question: “Does the house leak?” Mr Ossyanin says that question was never asked. He also says that, in fact, issues about potential leaks were addressed at an inspection on 27 October 2013. The plaintiff says no inspection took place on that date.

The new evidence

[5] The new evidence is to address whether or not a meeting took place with the plaintiff, Mr Shen, his real estate agent, Ms Chen, and Mr Harrington, his inspector, on 27 October 2013. Mr Ossyanin seeks to produce contemporaneous records of invoices and payments in respect of transaction services provided on 17 October 2013, 27 October 2013, and 1 November 2013. Mr Ossyanin, in particular, now wishes to produce an invoice in respect of services provided by Mr Naoumov, his interpreter, which purports to record his attendance at a meeting on 27 October 2013 with a

building inspector. Mr Ossyanin says that this evidence corroborates his version of events.

Reason for lateness

[6] Mr Ossyanin submits that he did not recall having received the invoices from Mr Naoumov until after the close of the hearing. Having reviewed them, they supported his version of events and now he seeks leave to adduce them.

The plaintiff’s opposition

[7] The plaintiff opposes the making of the order in relation to Mr Ossyanin and Mr Naoumov, for the following reasons:

(a)The issue whether or not the plaintiff and/or…

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 Shen v Ossyanin

Details

AGLC: Shen v Ossyanin [2018] NZHC 3385
Case: [2018] NZHC 3385
Decision Date: 18 December 2018

CaseChat Overview and Summary

In Shen v Ossyanin, the plaintiff, Zhaowu Shen, sought to establish that Andrey Yurievich Ossyanin misrepresented to him that the house sold by Ossyanin did not leak. The primary dispute was whether a meeting occurred on 1 November 2013 where Shen asked if the house leaked, to which Ossyanin denied. The case proceeded to the High Court of New Zealand, Auckland Registry, under case number CIV-2015-404-00855.

The court had to determine whether Ossyanin should be allowed to present further evidence to support his claims regarding a meeting on 27 October 2013. This evidence included contemporaneous records of invoices and payments, and the testimony of Anton Naoumov, an interpreter. Ossyanin argued that these documents corroborated his version of events, particularly that they supported his claim of an inspection on 27 October 2013. The plaintiff, however, opposed this application, asserting that the issue was clear from the start and that Ossyanin's failure to produce these documents earlier prejudiced the plaintiff.

The court considered the threshold test for admitting further evidence after the case had closed, referencing the principles articulated in Jackson v Te Rangi. It held that the discretion to admit such evidence should be exercised sparingly, particularly if the failure to produce the evidence earlier was due to a lack of due diligence. The court found that the documents sought to be introduced were indirectly relevant to the case's key issues and that allowing them would unfairly prejudice the plaintiff and cause unjustifiable expense and delay.

Based on these findings, the court granted the application to call Mr Mitalaukis, who was not opposed, subject to certain conditions. However, the application to introduce the contemporaneous records of invoices and payments was declined.

Orders