Song v Fan

[2025] NZHC 307

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-666

[2025] NZHC 307

BETWEEN

JIAN SONG

Plaintiff

AND

JIN PENG FAN

Defendant

Hearing:	25 February 2025
Counsel:	K Morrison / K L Chiu for the Plaintiff P S P Pang for the Defendant
Judgment:	26 February 2025

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 26 February 2025 at 4 pm.

Pursuant to Rule 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland Integratis Law, Auckland

SONG v FAN [2025] NZHC 307 [26 February 2025]

Introduction

[1]    The plaintiff, Jian Song (Mr Song), owns a property in  Pinehill.  In 2019,  Mr Song decided to subdivide the property into two lots and to eventually build two dwellings (the project). The defendant, Jin Peng Fan (Mr Fan), was engaged to provide design services to obtain a resource consent for the subdivision and a building consent for the dwellings.

[2]    The resource consent was granted on 10 December 2020. There was a delay in obtaining the building consent. In about November 2022, Mr Song engaged a new designer, and a building consent was granted on 30 May 2023. Mr Song has issued this proceeding against Mr Fan to recover losses allegedly arising from delays in the project.

[3]    The parties have completed standard discovery and the proceeding is set down for trial commencing on 28 April 2025. The evidence on behalf of Mr Song has been served. The evidence on behalf of Mr Fan is overdue.

[4]    Mr Fan has applied for further discovery from Mr Song. The application is opposed and determined in this judgment.

Mr Song’s claims against Mr Fan

[5]    Mr Song has filed an amended statement  of  claim  dated  12  July  2024  (the claim). Mr Song pleads that:

(a)he commenced the project together with Xi Chen (Mr Chen), and that they were acting “jointly as partners”; and

(b)in early August 2019, Mr Fan entered into a contract with Mr Song and Mr Chen (the contract).

[6]    In his affidavit in support of his notice of opposition to the application for further discovery, Mr Song says that his relationship with Mr Chen ended in

January 2022, and from then he pursued the project on his own. It is common ground that Mr Chen was involved in managing the project.

[7]    In his first cause of action, Mr Song pleads that Mr Fan breached the contract by failing to prepare, and submit, an application for a building consent within a reasonable time. Mr Song has not pleaded the particular terms of the contract that are alleged to have been breached. Nonetheless, the nature of the claim is obvious. It calls into question the conduct of the project generally, and in particular, Mr Fan’s conduct from when he was engaged until his services ended.

[8]The second cause of action in deceit relies on:

(a)pre-contractual representations allegedly made by Mr Fan regarding his qualifications as a licensed building practitioner and licensed architect, together with his experience in obtaining consents for subdivisions and development projects; and

(b)various assurances allegedly made by Mr Fan during 2021 and 2022 regarding his progress towards obtaining a building consent.

[9]    Both causes of action seek the same damages, which arise from various costs that Mr Song says resulted from Mr Fan’s poor performance.

[10]   There are numerous issues, including whether Mr Chen was a contracting party or Mr Song’s agent, the reasons for delay and whether Mr Song relied on statements allegedly made by Mr Fan (raising questions of agency).

Legal principles

[11]   There is a presumption that the affidavits of documents already filed are conclusive and the party seeking further discovery has the onus of establishing that the existing affidavit of documents is incomplete.1

1      McCullagh v Robt Jones Holdings Ltd [2015] NZHC 1462, (2015) 22 PRNZ 615 at [7].

[12]There are four matters to consider on an application for further discovery:2

(a)Are the documents sought relevant and, if so, how important will they be?

(b)Are there grounds to believe the documents exist? This will often be a matter of inference. How strong is the evidence?

(c)Is the discovery sought proportionate, balancing the time and cost of discovery against its potential value?

(d)Weighing and balancing these matters, should the Court exercise its discretion under r 8.19 of the High Court Rules 2016 and order further discovery?

The documents sought by Mr Fan

[13]Mr Fan now seeks further discovery of three categories of documents:

(a)communications between Mr Song and Mr Chen;

(b)communications between Mr Song and a civil engineer engaged on the project, EPE Consulting Ltd (EPE), and its representative David Wang (Mr Wang); and

(c)communications between Mr Song and an engineer engaged on the project, THL Design Group Ltd (THL), and  its  representative Jackson Chen Yu (Mr Yu).

2      Assa  Abloy  New  Zealand  Ltd  v  Allegion  (New  Zealand)  Ltd   [2015] NZHC 2760, [2018] NZAR 600 at [14].

Discussion

Communications between Mr Song and Mr Chen

[14]   Mr Fan argues that Mr Song must give discovery of all communications between Mr Song and Mr Chen from July 2019 to November 2023, including WeChat messages, emails and all other correspondence.

[15]   Mr Song does not object to discovering documents in this category, however, he says that:

(a)many of his communications with Mr Chen are irrelevant; and

(b)he has undertaken a search of his WeChat messages and email communications and all relevant communications with Mr Chen have been discovered.

[16]   Counsel for Mr Fan, Mr Pang, submitted that all communications between Mr Song and Mr Chen should be discovered whether related to the project or not.     I do not accept that submission. Only those communications that relate to the project are relevant. A broader search is a fishing expedition and not proportionate.

[17]   Counsel for Mr Song, Ms Chiu, confirmed to the Court that counsel had supervised a key word search of Mr Song’s email and WeChat messages using the following independent search terms: 678; 678 East Coast Road; Building Consent, BC, Auckland Council, Council, LBP, JF Archi; and Jin (the search terms).

[18]   The search revealed a pool of communications which counsel then reviewed for relevancy. Unfortunately, counsel’s view of relevancy was too narrow. Ms Chiu determined that only those communications relevant to the issue of the representations allegedly made by Mr Fan are relevant. However, due to Mr Song’s first cause of action, any communications with Mr Chen that relate to the project are relevant.

1. After discussion with counsel for both parties, the parties agreed that:

(a)the search terms are appropriate;

(b)the search should be conducted again, supervised by counsel; and

(c)any communications between Mr Song and Mr Chen retrieved by the search that in any way relate to the project should be discovered.

Communications between Mr Song and EPE/Mr Wang

[20]   EPE and Mr Wang were initially engaged by Mr Fan to complete work in respect of the plumbing designs for the project. It appears that Mr Fan was the main point of contact for Mr Wang. Mr Fan’s discovery includes his communications with Mr Wang.

[21]   Mr Song does not  object  to  discovering  his  communications  with  EPE/Mr Wang. However, he says that:

(a)he had little contact with EPE/Mr Wang;

(b)he has undertaken a search of his WeChat and email, using the search terms, for communications with EPE/Mr Wang; and

(c)the only documents retrieved are WeChat messages from a WeChat group conversation between Mr Song, Mr Chen and Mr Wang, which were determined by counsel to be irrelevant.

[22]   Again, Ms Chiu’s view of relevancy was too narrow. After discussion with counsel, it was agreed that the messages from a WeChat group conversation between Mr Song, Mr Chen and Mr Wang should be discovered.

Communications between Mr Song and THL/Mr Yu

[23]   THL was engaged by Mr Song in October 2022 to complete the work in respect of the plumbing designs for the project, after EPE had ceased work. THL had been involved earlier in the project in respect of another aspect of design, on instructions from Mr Fan. Mr Fan has given discovery of his communications with THL.

[24]   Mr Song does not object to discovering his communications with THL/Mr Yu. However, he says that:

(a)from October 2022, THL dealt with the main designer he engaged to obtain the building consent, FORS Capital Group (FORS);

(b)he has obtained communications between THL and FORS which have already been discovered;

(c)he did not communicate directly with THL, and THL has provided an email confirming the extent of its contact with Mr Song; and

(d)he has undertaken a search of his WeChat and email, using the search terms, and there are no communications with THL/Mr Yu to be discovered.

[25]   Mr Pang was unable to point to any documents already available which suggest that there are communications between Mr Song and THL/Mr Yu that should have been discovered by Mr Song. There is no basis to look behind Mr Song’s affidavit of documents.

Orders

[26] Under the supervision of counsel, the plaintiff shall search his email and WeChat records, including all email addresses and WeChat accounts used by the plaintiff, using the search terms (independently) at [17] above. The plaintiff shall discover:

(a)any communications between the plaintiff and Xi Chen retrieved by the search that in any way relate to the project; and

(b)all WeChat messages from a WeChat group conversation between the plaintiff, Xi Chen and David Wang retrieved by the search.

[27]The plaintiff shall provide the further discovery to the defendant informally, by

3 March 2025.

[28]The proceeding shall be called in a telephone conference before me on

6 March 2025 at 9 am, to review compliance with the further discovery order.

[29]Costs on the defendant’s application for further discovery are reserved.

[30]   The defendant shall serve his briefs of evidence, and a list of documents for inclusion in the common bundle, by 18 March 2025.

[31]The plaintiff shall file and serve his opening statement for trial by

14 April 2025.

[32]The defendant shall file and serve his opening statement for trial by

23 April 2025.

Associate Judge Brittain