Shiu v Luo - [2024] NZCA 277

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA58/2022
[2024] NZCA 277

BETWEEN	XIAOLING (ANNIE) SHIU First Appellant
AND	CSR POKENO LIMITED Second Appellant
AND	ZHENLIN (ROBERT) LUO First Respondent
AND	K C BROTHERS LIMITED Second Respondent
AND	ANG YIP Third Respondent
AND	MANFEI COMPANY LIMITED Fourth Respondent

Court:	French, Gilbert and Mallon JJ
Counsel:	D R Bigio KC and Y Y Mortimer-Wang for Appellants J E Hodder KC for Respondents
Judgment: (On the papers)	1 July 2024 at 11.30 am

JUDGMENT OF THE COURT
(Application for Stay)

AThe application for a stay of part of this Court’s judgment delivered on 7 March 2024 is granted to the extent and subject to the conditions specified in [11].
BThe security arrangements ordered in the High Court by Tahana J on 12 September 2022 are to remain in place until the date on which the respondents’ application for leave to appeal to the Supreme Court is determined.
CWe make no award of costs in relation to the application for a stay.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

On 7 March 2024, we issued a judgment allowing an appeal brought by Ms Shiu and CSR Pokeno Ltd (Pokeno) against a decision of Whata J in the High Court.[1] The Judge had awarded damages and interest totalling just over $1 million in favour of the first respondent, and damages and interest totalling approximately $1.6 million in favour of the fourth respondent.[2] We held that the appellants were not liable to pay any of these sums and also dismissed a cross‑appeal brought by the respondents.
[1]Shiu v Luo [2024] NZCA 48 [Court of Appeal judgment]; and Luo v Shiu [2021] NZHC 3564, (2021) 22 NZCPR 911 [High Court judgment].
[2]High Court judgment, above n 1, at [133].
The formal orders made by us were as follows:
A The appeal is allowed and the cross-appeal is dismissed.
B The decision of the High Court is quashed.
CThe respondents must pay the appellants’ costs in the High Court calculated on a 2B basis, together with usual disbursements. Any disagreement as to amount may be determined by that Court.
DThe respondents are ordered to pay the appellants one set of costs for a standard appeal on a band A basis, with usual disbursements. We certify for two counsel.
ELeave is reserved for the parties to come back to this Court for further orders in the event there are any difficulties regarding repayment of security for costs in both this Court and the High Court.
On 8 April 2024, the respondents filed an application for leave to appeal our decision to the Supreme Court. The application for leave has not yet been determined. Subsequently, on 6 May 2024, the respondents filed an application in this Court seeking an order staying execution of our judgment until the Supreme Court decides their application for leave and any appeal pursuant to leave.[3]
[3]In reliance on r 30 of the…

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 Shiu v Luo

Details

AGLC: Shiu v Luo [2024] NZCA 277
Case: [2024] NZCA 277
Decision Date: 1 July 2024 at 11.30 am

CaseChat Overview and Summary

The case of Shiu v Luo, decided by the Court of Appeal of New Zealand, involves an appeal against a High Court decision which awarded damages to the respondents. Xiaoling Shiu and CSR Pokeno Limited are the appellants, while Zhenlin Luo, K C Brothers Limited, Ang Yip, and Manfei Company Limited are the respondents. The Court of Appeal had previously dismissed the respondents' claims and ordered the quashing of the High Court's decision, along with costs orders. The respondents now seek a stay of the Court of Appeal's judgment pending an application for leave to appeal to the Supreme Court.

The key legal issue in this case was whether to grant a stay of the Court of Appeal's judgment to allow the respondents to pursue an appeal to the Supreme Court. The respondents argued that the appeal was genuine, raised issues of public importance, and had a reasonable chance of success. They also contended that without a stay, there was a significant risk of dissipation of the appellants' assets, rendering the appeal nugatory. The appellants opposed the stay application, arguing that the risk of asset dissipation was not a new issue.

The Court of Appeal, after reviewing the principles governing stay applications, concluded that it was in the interests of justice to grant the stay under certain conditions. The stay would apply only to the parts of the Court of Appeal's judgment allowing the appeal and quashing the High Court's decision, and it would remain in effect until the Supreme Court decides on the application for leave to appeal. The stay is conditional on the respondents repaying certain costs and paying future costs into a trust account. The Court also ordered that the security arrangements previously ordered by the High Court remain in place until the Supreme Court's decision on the leave to appeal. The Court made no award of costs in relation to the stay application.

The Court of Appeal granted the application for a stay of part of its judgment, subject to the conditions outlined above. This means that the enforcement of the orders allowing the appeal and quashing the High Court judgment is stayed until the Supreme Court decides on the application for leave to appeal. The security arrangements ordered by the High Court will also remain in place during this period.

Orders