D R Bigio KC and Y Y Mortimer-Wang for Appellants S R G Judd and Z Chen for Respondents
Judgment:
7 March 2024 at 2.30 pm
JUDGMENT OF THE COURT
AThe appeal is allowed and the cross-appeal is dismissed.
BThe 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.
Mr Luo and the three Helenslee Road properties [12] Ms Yip and 145C Helenslee Road [29]
The proceedings [44] The High Court decision [63] The positions on appeal [65] Did the evidence support the finding that Ms Shiu made the Pōkeno West representation? [73] Did the commission representation render Ms Shiu liable for losses in addition to the commission payments? [106] Liability of CSR Pokeno [131] Outcome [135]
Introduction
Ms Annie Shiu[1] is a property developer who saw a development opportunity in Pōkeno West on the outskirts of Auckland.[2] It is a fast-growing area and there was a substantial amount of farmland that was being considered for rezoning from rural to residential. Ms Shiu embarked on a strategy of buying up individual properties in that area on terms that provided for prices above market value, delayed settlements and larger than usual deposits. She enlisted the support of the respondents, Ms Yip and Mr Luo, as investors to help fund some of the acquisitions pursuant to the terms of joint venture agreements.
[1]Ms Shiu is also sometimes referred to as Ms Chen. This judgment refers to her as Ms Shiu throughout.
[2]Pōkeno is also spelt as Pookeno. We have referred to it as Pōkeno throughout (except when referring to a specific legal entity) in accordance with the New Zealand Geographic Board.
The other respondents are entities associated with either Mr Luo or Ms Yip. The second respondent is Mr Luo’s investment company and the fourth respondent Manfei Company Ltd (Manfei) is owned by Ms Yip.[3]
[3]Ms Yip owns half of the shares in Manfei, the other half are owned by her business partner who took…
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.
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AGLC
Shiu v Luo [2024] NZCA 48
Case
[2024] NZCA 48
Decision Date
CaseChat Overview and Summary
In Shiu v Luo, the Court of Appeal of New Zealand addressed a dispute involving alleged misrepresentations made by Xiaoling Shiu to Zhenlin Luo and Ang Yip, who were seeking damages and other remedies. The case centred on two key misrepresentations: one about commission payments to a real estate agent and another about Luo and Yip's involvement and profit-sharing in a broader development project. The High Court found both representations to be actionable under the Fair Trading Act, awarding damages to Luo and Yip and holding CSR Pokeno, a company owned by Shiu, jointly liable. On appeal, the Court of Appeal allowed the appeal, dismissed the cross-appeal, and quashed the High Court's decision. The appellate court found that the evidence did not support the High Court's finding that Shiu had made the broader development representation, and that the commission representation did not render Shiu liable for additional losses beyond the commission payments. The Court also expressed reservations about CSR Pokeno's vicarious liability. As a result, the respondents were ordered to pay the appellants' costs.