IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-646
[2019] NZHC 2218
BETWEEN
WORLDWIDE HOLIDAYS LIMITED
Plaintiff
AND
XIAONING WANG
First Defendant
HAIMENG LIN Second Defendant
LI HEMING Third Defendant (discontinued)
BU JUN
Fourth Defendant
Hearing:
6, 7, 8, 10 and 13 May 2019
Appearances:
T Allan, G Steyne and T P Kelly for the Plaintiff No appearance by or for the First Defendant
The Second Defendant in person No appearance by or for the Fourth Defendant
Judgment:
5 September 2019
JUDGMENT OF GAULT J
This judgment was delivered by me on 5 September 2019 at 3:30 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Parties / Solicitors / Counsel:
Mr T Allan and Mr T P Kelly, Grove Darlow & Partners, Auckland The first defendant, Ms Xiaonng Wang
The second defendant, Ms Haimeng Lin
Mr Yang (Eddie) Yang (for the fourth defendant), Great Wall Lawyers, Auckland
WORLDWIDE HOLIDAYS LTD v WANG [2019] NZHC 2218 [5 September 2019]
[1] The plaintiff, Worldwide Holidays Ltd, is a New Zealand travel agency selling inbound and outbound travel and tourism services. Approximately 95 per cent of Worldwide’s services are provided to customers travelling between New Zealand and China – 60,000 or more customers per year.
[2] The first defendant, Ms Wang, was an employee or independent contractor working as a travel consultant for Worldwide between 2007 and 2017. Counsel for Ms Wang advised the Court by memoranda in March 2019 that the first defendant did not intend to appear at the trial or file evidence and would abide by the ruling of the Court in her absence, and subsequently that he had received instructions to cease acting. Leave was granted by van Bohemen J excusing counsel’s attendance at the trial.
[3]The second defendant, Ms Lin, is a friend of the first defendant.
[4] The third defendant, Li Heming, was thought to be the husband of the first defendant but has never been served or pursued. The plaintiff filed a discontinuance in November 2017, but not all defendants consented. I granted leave to discontinue at the hearing.
[5] The fourth defendant, Ms Jun, is the mother of the first defendant. Prior to trial Ms Jun’s counsel advised that she would not be appearing at the trial or filing evidence, and van Bohemen J excused counsel’s attendance.
[6] Worldwide claims that Ms Wang misappropriated money from Worldwide in breach of her fiduciary and contractual duties as its agent. Worldwide claims for misappropriation of $1,435,708.95 in the period from 1 January 2010, even though it suspects further misappropriation may have pre-dated this period.
[7] Worldwide also claims that sum in contract pursuant to an acknowledgement of debt signed by Ms Wang in March 2017 after the alleged misappropriation came to light. Worldwide also claims the same sum against Ms Jun as guarantor.
[8] Worldwide claims that Ms Lin received $558,468.50 of its money from Ms Wang or directly from Worldwide’s…
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
Worldwide Holidays Ltd v Wang [2019] NZHC 2218
Case
[2019] NZHC 2218
Decision Date
CaseChat Overview and Summary
The case involves Worldwide Holidays Ltd suing Xiaoning Wang, Haimeng Lin, and Li Heming for misappropriation of funds. Wang, a former employee and independent contractor, is alleged to have misappropriated $1,435,708.95, which Worldwide seeks to recover. Lin is accused of receiving $558,468.50 from Wang, and Worldwide also claims this amount from Jun, Wang's mother, as a guarantor. The court had to determine whether Wang owed Worldwide a fiduciary duty, whether she misappropriated funds, and whether Lin received Worldwide's money. Wang did not appear in court, while Lin represented herself. The court found Wang did owe Worldwide a fiduciary duty and misappropriated funds, and that Lin received Worldwide's money. Worldwide is entitled to judgment against Wang for $1,310,729, against Lin for $526,768.50, and against Jun for $1,435,708.95 plus interest, subject to a total recovery limit of $1,435,708.95. Worldwide is also entitled to costs on a 2B basis plus disbursements.