Xue v Liu HC Auckland CIV-2010-404-3315
[2011] NZHC 95
•14 February 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-3315
BETWEEN XIU JUAN XUE Plaintiff
ANDLI GUN LIU Defendant
Hearing: 14 February 2011 (Heard at Auckland)
Appearances: Mr Tezlaff for Plaintiff
Mr Wu for Defendant
Judgment: 14 February 2011
ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE
Counsel:
Gaze Burt, P O Box 91345, Auckland – [email protected]
David Rooke Law Office, P O Box 64-342, Botany Manukau 2142 – by email:
XUE V LIU HC AK CIV-2010-404-3315 14 February 2011
[1] An application for summary judgment is listed today to which the defendant has filed an opposition. The form of opposition is appropriate to an application for summary judgment. The defendant has not filed any affidavits in support of the opposition. As well there have been developments with the case as are set out in a memorandum which Mr Rooke the solicitor for the defendant has filed and which were confirmed by Mr Wu in the submissions that he made to me today. That is to say, the defendant has instructed counsel to withdraw the opposition based upon the grounds which were set out in the notice of opposition filed 13 August 2010.
[2] No replacement notice of opposition has been filed. However in his memorandum dated 11 February 2011 Mr Rooke said that there were two additional matters put forward in defence. The first of which is that the defendant now has in her possession the expert opinion of a document examiner which makes at least arguable that the agreement for sale and purchase was signed by a person who is not the purchaser/plaintiff (paragraph 23 of Mr Rooke’s memorandum). Mr Rooke also raised in his memorandum that the property had been sold at an undervalue.
[3] There has been yet a further shift in the position of the vendor/defendant since Mr Rooke filed his memorandum. Mr Wu told me that the defendant’s document examiners report apparently concludes that the signature of the plaintiff on document Q1 – which is the agreement for sale and purchase would appear to be genuine but that the signature on another document which is the private individual client authority and instruction for electronic transaction may not be the plaintiff’s signature. I will come back to these issues shortly. The document examiner who has produced a report has also considered documents two other documents, which were referred to in the report as Q2 and Q3.
[4] The second ground of opposition Mr Wu told me is that the defendant authorised the selling of her property by auction only and that an auction did not take place.
[5] Dealing first with the validity of the document signatures, the defendant’s
case rests upon a report from a Mr Dubedat, a document examiner from New South
Wales. If the matters stated in Mr Dubedat’s report support the conclusion that forged documents have been used in this transaction, Mr Wu’s submission was that the Court should either decline to grant summary judgment or adjourn the case so that the evidence can be got into proper form.
[6] As matters stand the document examiner’s report has not been properly verified by an affidavit. I have accepted the document in unsworn form simply for the purposes of familiarising myself with the substance of the allegations that the defendant makes. My approach will be to enquire whether, assuming that the copy of the document from the document examiner is what it purports to be, that there is some reasonable ground for supposing that fraud could be established in this case. If there is no such reasonable ground then I do not intend to prevent the plaintiff from proceeding to summary judgment by granting an adjournment so that further evidence can be filed. Another matter I need to consider in relation to the document examiners report is the late production of that report. It was produced on 2
December 2010 but has only emerged in the last few days.
[7] The key issue about the signatures on the memorandum of the particulars and conditions of the auction is that the document examiner concluded that the questioned signature of the purchaser on document Q1 “is very probably a genuine signature of the writer of the specimen ... signatures”. But it is then suggested that there may be a forged signature on another document which is a copy of the particulars and conditions of sale by auction. This is document Q2 which is a copy of Q1. Whatever significance that might have, is substantially undermined because the document examiner simply says that the validity of the signature on Q2 – that is the signature of the purchaser – “cannot be verified”. He does not say it is false.
[8] Much the same conclusion is reached about a further document, Q4 which is an instruction given by the plaintiff to her solicitors to sign on her behalf a settlement notice addressed to the vendor. That document too is one which the document examiner says “cannot be verified”. It is difficult to see what significance this would have in any event because as Mr Tetzlaff said that instruction could have been given orally to the solicitor. A further document that was submitted to the document examiner was Q3. This was the “private individual client authority and instruction
for electronic transaction” to which I have already made reference. This type of document is a document by which the party to a transaction provides to the lawyer acting verification of the client’s identity. The lawyer must have this before he or she completes the transaction electronically. The clear purpose of these requirements is to prevent fraud in property transactions. The document examiner has looked at the document in this case which was again signed by the plaintiff. It was also signed by her son that I understand from the context of the report that the question of the validity of his signature is not a matter that is gone into. Significantly, though, the document examiner says that he is unable to determine whether those signatures “on (those are the signatures on Q3) are genuine or not”.
[9] It seems to me fairly unlikely that the signatures on Q3 would be fraudulently obtained because it seems that the solicitor acting, Mr Liu, on the copy that has been provided to me has checked the identity against the plaintiff’s driver’s licence and passport. If the signature that he then took was a forgery the solicitor must have made a fundamental mistake in identifying the plaintiff or be a party to fraud. Either of these explanations is inherently unlikely.
[10] Looking at matters in wider view, it would seem odd that a plaintiff who has placed a genuine signature on the documents on which the whole transaction is based would have resorted to fraud or forgery with regard to documents of a subsidiary importance in the transaction. One asks the question, why would there need to be such fraud?
[11] As Mr Tetzlaff said when fraud is pleaded, because it is a very serious allegation, it needs to be proved to a high standard. It return to the question of whether the material that has been adduced indicates that given more time the defendant might be able to make out a compelling case that there has been fraud in this case which would vissiate the transaction. My conclusion is that it falls well short of that point. Further, if further time were given for that purpose it would further frustrate the purchaser who has been attempting for some time to enforce this transaction. All this has occurred in circumstances where the defendant has left it very much until the last minute to produce evidence which she has had in her possession since the beginning of December 2010. I do not view the need to
investigate the alleged fraud as a ground for adjourning the proceedings let alone a ground for rejecting summary judgment for specific performance entirely.
[12] The second point concerns how the transaction in this case took place. As I have said, it is suggested for the defendant that she was only prepared to enter into a sale by auction and that an auction did not take place. This point is hopeless. There are numerous deponents who describe being at the auction including the auctioneer Mr M C Smith who conducted the auction on 14 July 2009. The plaintiff’s son, Jesse Sun has given evidence that he attended the auction. The plaintiff herself says that she purchased the property at auction on 14 July. The real estate agent, Mr Fong, says the same thing. I cannot believe that all of these people have colluded to give false evidence about an event which took place in public and which is evidenced by contemporaneous documents.
[13] My conclusion therefore is that the plaintiffs ought to be permitted to continue today with the application for summary judgment and I shall now hear the
plaintiff on the application itself.
J.P. Doogue
Associate Judge
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