Yingling v Gifford - [2018] NZHC 53

IN THE HIGH COURT OF NEW ZEALAND

GISBORNE REGISTRY

CIV-2015-416-000026

[2018] NZHC 53

BETWEEN
RANDY YINGLING

Plaintiff

AND

KENNETH JOHN GIFFORD

First Defendant

AND

DEAN JOHN WITTERS

Second Defendant

Hearing: 15 August 2017

Appearances:

G Thwaite for the Plaintiff

A M Simperingham and S Taylor for the Defendants

Judgment:

5 February 2018

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 5 February 2018 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Woodward Chrisp, Gisborne G Thwaite, Auckland
Copy to:

Rishworth Wall & Mathieson, Gisborne Burnard Bull & Co, Gisborne

YINGLING v GIFFORD [2018] NZHC 53 [5 February 2018]

Introduction

[1] The plaintiff, Randy Yingling, seeks to enforce a foreign judgment in New Zealand. This is his second attempt.

[2] He unsuccessfully applied for summary judgment in 2016.1 I declined the application because I considered the defendants had an arguable defence that the foreign judgment might be impeachable for fraud. Fraud is one of the limited grounds on which a foreign judgment can be impeached.2

[3]Now Mr Yingling brings fresh interlocutory applications seeking orders:3

(a)striking out the defence of fraud; or alternatively

(b)granting him leave to bring another application for summary judgment, and then for judgment to be entered on his claim.

[4]The applications are declined. My reasons follow.

Background

[5] The defendants, Ken Gifford and Dean Witters, owned a California-based business in drum lines. They retained Mr Yingling as their salesman. Disputes soon arose.

[6] Mr Yingling filed proceedings in California alleging breach of contract and fraud. He contended that the defendants took his customer lists in order to make arrangements behind his back to sell to prospective clients directly. In so doing they deprived him of commission under his contract with the defendants.

[7] After briefly opposing the action, the two defendants eventually gave up the defence and did not appear at the hearing. They returned to New Zealand. On

1      Yingling v Gifford [2016] NZHC 1556.
2      Kemp v Kemp [1996] 2 NZLR 454 (HC) at 458. I do not propose to rehearse the legal principles on the enforcement of foreign judgments, which are set out in my earlier judgment.
3      The plaintiff’s notice of application dated 18 April 2007 also sought other orders, including an order recalling my judgment of 11 July 2016. These additional orders have since been retracted.

26 April 2012, the California Court ultimately found in Mr Yingling’s favour, entering judgment for breach of contract and fraud. Mr Yingling was awarded actual and punitive damages as well as costs.

[8] Mr Yingling’s application for enforcement in New Zealand came before me on 3 May 2016. The defendants opposed the application, alleging fraud in Mr Yingling’s failure to bring key facts to the California Court’s attention. Specifically, Mr Yingling is said to have misled the Court by omitting to mention that there were actually no sales for which he was owed commission. This omission prevented the Court from entertaining an alternative possibility…

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 Yingling v Gifford

Details

AGLC: Yingling v Gifford [2018] NZHC 53
Case: [2018] NZHC 53
Decision Date: 5 February 2018

CaseChat Overview and Summary

Randy Yingling, the plaintiff, sought to enforce a foreign judgment in New Zealand against Kenneth John Gifford and Dean John Witters, the defendants, both of whom are from New Zealand. The case involved a dispute over a breach of contract and fraud in relation to a business involving drum lines owned by the defendants. Yingling had previously filed proceedings in California and obtained a judgment in his favour, awarding him damages and costs. However, the defendants opposed the enforcement of this judgment in New Zealand, alleging fraud in Yingling's failure to bring key facts to the attention of the California Court.

The court was required to decide two main issues: first, whether the court had jurisdiction to hear a second summary judgment application, and second, whether the defence of fraud could be struck out or if summary judgment should be awarded. The court found that while the High Court Rules suggested that a second summary judgment application could only be heard in special circumstances, the court also had to consider the overarching objective of the Rules, which is to secure the just, speedy, and inexpensive determination of any proceeding. The court also concluded that the defence of fraud was not so clearly untenable so as to justify striking it out or awarding summary judgment without a full trial.

The court declined both of Yingling's applications, finding that the defence of fraud was not so hopeless that it should not be allowed to progress to trial, nor was it frivolous, vexatious, or an abuse of process. The court reserved costs in accordance with the decision of the Court of Appeal in NZI Bank Ltd v Philpott [1990] 2 NZLR 403, and requested the Registrar in Gisborne to allocate a case management conference.

Orders