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Yingling v Gifford

Yingling v Gifford

Case [2016] NZHC 1556 11 July 2016

Summary Judgment

Breach of Contract

Fraud

Enforcement of Foreign Judgment

Civil Litigation & Procedure

International Trade Law

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IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CIV-2015-416-000026 [2016] NZHC 1556

BETWEEN
RANDY YINGLING

Plaintiff

AND

KENNETH JOHN GIFFORD First Defendant

AND

DEAN JOHN WITTERS Second Defendant

Hearing: 3 May 2016

Appearances:

G Thwaite for the Plaintiff
R Donnelly for the First Defendant

Judgment:

11 July 2016

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 11 July 2016 at 11.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Rishworth Wall & Mathieson, Gisborne

G Thwaite, Auckland

YINGLING v GIFFORD & Anor [2016] NZHC 1556 [11 July 2016]

[1] This is an application for summary judgment on a claim for the enforcement of a judgment entered in the US Superior Court of California in June 2011. The claim arose out of events between 2007 and 2010, and related to a commission the plaintiff says he is entitled to. The plaintiff says the defendants took his customer lists in order to make arrangements to sell to prospective clients directly, thereby depriving him of commission. The Superior Court found that that was the case, and entered judgment for the plaintiff on causes of action of breach of contract and fraud.

[2] The defendants oppose the application. No limitation defences are raised. The defendants’ sole claim is that the judgment is impeachable for fraud because there was fraud on the part of the plaintiff when seeking judgment in that he failed to draw a key fact to the court’s attention; they say they had no intention to defraud the plaintiff, and would have paid him, but there were no sales. The plaintiff says that the defendants conducted a full defence at trial and the Court was aware of all the relevant evidence.

Summary judgment principles

[3] Rule 12.2 of the High Court Rules states:

12.2 Judgment when there is no defence or when no cause of action can succeed (1) The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to [a cause of action in the statement of
claim or to a particular part of any such cause of action].
…

[4] In Krukziener, the Court of Appeal explained the applicable principles on an application for summary judgment as follows:1

The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1at 3 (CA). The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally

1 Krukziener v Hanover Finance Ltd [2008] NZCA 187, (2008) 19 PRNZ 162 at [26].

resolve material conflicts of evidence or…

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 [2016] NZHC 1556
Case: [2016] NZHC 1556
Decision Date: 11 July 2016

CaseChat Overview and Summary

Yingling v Gifford is an application for summary judgment on a claim for the enforcement of a judgment entered in the US Superior Court of California in June 2011. The claim arose out of events between 2007 and 2010, and related to a commission the plaintiff says he is entitled to. The plaintiff says the defendants took his customer lists in order to make arrangements to sell to prospective clients directly, thereby depriving him of commission. The Superior Court found that that was the case, and entered judgment for the plaintiff on causes of action of breach of contract and fraud. The defendants oppose the application and claim that the judgment is impeachable for fraud because there was fraud on the part of the plaintiff when seeking judgment in that he failed to draw a key fact to the court’s attention; they say they had no intention to defraud the plaintiff, and would have paid him, but there were no sales. The plaintiff says that the defendants conducted a full defence at trial and the Court was aware of all the relevant evidence.

Summary judgment principles and the principles on enforcement of foreign judgment were considered. It was found that the foreign judgment cannot be re-examined on its merits, and the foreign judgment is conclusive as to any matter adjudicated on, whether fact or law. However, fraud is an exception to the rule. The court found that the fraud necessary to destroy a prima facie case of estoppel by res judicata includes every variety of mala fides and mala praxis whereby one of the parties misleads and deceives the judicial tribunal. The court held that in the context of summary judgment, this means that, if it appears that the plaintiff may have led the California Court, by omission, to believe that sales had been made, the required level of fraud will have been established and the court should decline summary judgment.

The court found that in the circumstances of this case, the plaintiff could have made out his claim by showing clear evidence that he did, indeed, raise the fact that no sales were in fact made; or alternatively clear evidence that whether or not sales were made was immaterial under California law for the purpose of establishing liability and ruling on the issue of quantum. However, the plaintiff has not done so. The court found that the plaintiff has not provided enough evidence to convince the court that the defendants have no defence to his cause of action. As a result, the court was unable to grant summary judgment. The plaintiff's application for summary judgment was declined. Costs were reserved.

Orders