Xiao v Sun - [2016] NZHC 454

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2872 [2016] NZHC 454

UNDER
the Credit Contracts and Consumer

Finance Act 2003

BETWEEN

HANYUE XIAO Plaintiff

AND

XIUFANG SUN Defendant

Hearing: 12 February 2016

Counsel:

A J B Holmes for Plaintiff
B O'Callahan, J A Frampton and Z Chen for Defendant

Judgment:

16 March 2016

JUDGMENT OF DAVISON J

This judgment was delivered by me on 16 March 2016 at 12pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Loo & Koo (Auckland) for Plaintiff
Kirkland Morrison O’Callahan & Ho (Auckland) for Defendant

XIAO v SUN [2016] NZHC 454 [16 March 2016]

Introduction

[1] The plaintiff, Ms Xiao, has applied for interim relief by way of an injunction to restrain the defendant, Ms Sun, from taking any steps to enforce compliance with the PLA notices dated 20 October 2015 (detailed below) pending the substantive hearing of this proceeding.

[2] Ms Sun opposes the plaintiff’s application for interim relief and has filed a counterclaim seeking judgment in the sum of $700,000 against Ms Xiao, being the outstanding amount due under the Term Loan Agreement and addenda, together with interest and costs. Ms Sun has also applied for summary judgment on both her defence to the claim and on her counterclaim. Ms Xiao opposes both applications.

Alleged facts1

[3] Both parties have VIP membership at the SkyCity Casino (the Casino).

[4] Ms Sun met Ms Xiao in about 2013 at the Casino. Ms Sun told Ms Xiao that she was once a black jack dealer at the Casino; that she was now a professional gambler; and that she knew how to count cards. She also told Ms Xiao that she is the wife of a Mr Hui Zhang, and that they had a child together.

Oral Loan Agreement

[5] In or about April 2014, Ms Xiao was gambling at the Casino and at the time had lost a significant amount of money. Ms Sun had been with her when this happened, and that same day offered to provide Ms Xiao with $10,000 worth of Casino chips by way of a loan. Ms Sun explained that as she was about to travel to China for a month, Ms Xiao could borrow and use the Casino chips to continue to gamble while she was away in China.

[6] When Ms Sun returned from China in late May 2014, she met Ms Xiao at the

Casino and requested immediate repayment of the loaned amount. Ms Xiao said she

1 The summary of facts is taken from the plaintiff ’s amended statement of claim dated 9 February
2016 and affidavit dated 2 December 2016. The defendant’s version of events is set out below.

was unable to repay her immediately and asked her for two days within which to arrange the funds to make payment. Ms Sun said that she would not accept any delay, and that she required to be repaid immediately.

[7] Ms Sun then suggested that she could arrange for a…

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 Xiao v Sun

Details

AGLC: Xiao v Sun [2016] NZHC 454
Case: [2016] NZHC 454
Decision Date: 16 March 2016

CaseChat Overview and Summary

Hanyue Xiao has applied for interim relief by way of an injunction to restrain Xiufang Sun from taking any steps to enforce compliance with the PLA notices dated 20 October 2015. Ms Sun opposes the application and has filed a counterclaim seeking judgment in the sum of $700,000 against Ms Xiao, being the outstanding amount due under the Term Loan Agreement and addenda, together with interest and costs. Ms Sun has also applied for summary judgment on both her defence to the claim and on her counterclaim. Ms Xiao opposes both applications. The court held that there are serious questions to be tried as to whether the loan agreements between the parties were consumer credit contracts within the meaning of the Credit Contracts and Consumer Finance Act 2003 and, if so, whether they were oppressive. The court also held that the balance of convenience and the overall justice of this case clearly favoured the granting of the orders sought by Ms Xiao. The court further held that there were material conflicts of evidence which could not be determined on a summary basis. Accordingly, the court granted Ms Xiao's application for an order by way of interim injunction to restrain Ms Sun from taking any steps to enforce compliance with the PLA notices dated 20 October 2015. Costs are reserved.

Orders