Zheng v Deng - [2022] NZHC 2595

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002730

[2022] NZHC 2595

BETWEEN
LU ZHENG

First Plaintiff

ORIENT CONSTRUCTION LIMITED
Second Plaintiff

AND

DONGLIN DENG

First Defendant

BIN JIANG
Second Defendant

ORIENT HOMES LIMITED
Third Defendant

.../intituling cont over

Hearing: 6 October 2022

Counsel:

D Zhang for Plaintiffs

JD Turner and KL Chiu for First Defendant

Judgment:

11 October 2022

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 11 October 2022 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Amicus Law, Auckland.
McVeagh Fleming Lawyers, Auckland.

ZHENG v DENG [2022] NZHC 2595 [11 October 2022]

EVERSOLID CONSTRUCTION LIMITED
Fourth Defendant

HONGLAN LIU
Fifth Defendant

D & R HOMES LIMITED
Sixth Defendant

YAN JIN
Seventh Defendant

TONG ZHU
Eighth Defendant

YAOKUN CHEN
Ninth Defendant

The case

[1] In 2019, I dismissed claims by Lu Zheng and another plaintiff against Donglin Deng and other defendants.1 I later ordered Mr Zheng pay Mr Deng costs of
$258,137.41.2 Mr Zheng appealed to the Court of Appeal. In 2020, that Court concluded I was wrong to find there was no partnership between Mr Zheng and Mr Deng.3 It ordered an account be taken of the dealings of the partnership. Mr Deng obtained permission to appeal to the Supreme Court, but in 2022, his appeal was dismissed by that Court.4

[2] In allowing Mr Zheng’s appeal, the Court of Appeal “strongly” encouraged the parties to resolve matters between them, without the need for further litigation.5 That has not happened. This judgment addresses two matters in relation to this ongoing case:

(a)Whether Mr Deng should be ordered to repay Mr Zheng costs of
$258,137.41.

(b)The procedure to be adopted in this Court in relation to the taking of the account of the dealings of the partnership.

Repayment of $258,137.41?

[3] The Court of Appeal set aside my costs order. Given this and his successful appeal to that Court, Mr Zheng seeks an order Mr Deng repay him $258,137.41. Of this sum, $100,906.52 is held in trust (it governed a disbursement). Mr Zheng seeks an order this be released to him.

[4] Mr Deng opposes both orders, though he acknowledges it is open to me to make them, or ones like them, by analogy to r 20.20 of the High Court Rules 2016 using r 1.6 of the same rules.

1      Zheng v Deng [2019] NZHC 3236.
2      Zheng v Deng [2020] NZHC 959.
3      Zheng v Deng [2020] NZCA 614.
4      Deng v Zheng [2022] NZSC 76.
5      Zheng v Deng, above n 3, at [133].

[5] In very short, Mr Deng contends the Court of Appeal judgment left my determinations intact in relation to several causes of action, so this is not a clear case in which an appellant has been completely vindicated on appeal. Mr Deng also argues Mr Zheng’s case was poorly presented at trial, and even if…

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 Zheng v Deng

Details

AGLC: Zheng v Deng [2022] NZHC 2595
Case: [2022] NZHC 2595
Decision Date: 11 October 2022

CaseChat Overview and Summary

Lu Zheng and Orient Construction Limited brought claims against Donglin Deng and other defendants in 2019, which were dismissed by Downs J. Zheng appealed to the Court of Appeal which found there was a partnership between Zheng and Deng and ordered an account of the partnership's dealings. Deng appealed to the Supreme Court, which dismissed the appeal. Zheng now seeks repayment of costs and clarification on the procedure for taking the account of the partnership's dealings. The key legal issues were whether Deng should repay Zheng the costs and what procedure should be adopted for taking the account of the partnership's dealings. The Court found that Zheng should be restored to the position he would have been in had he been vindicated at first instance. The Court also found that the internal and external accounts should be prima facie evidence of the truth of their contents. The Court decided that the parties' experts should continue to prepare reports, confer, and identify areas of disagreement. The Court declined to appoint an expert to take the account at this stage. The Court ordered Deng to repay Zheng $258,137.41 and made directions for the parties' experts to prepare reports and identify areas of disagreement. The Court will convene a telephone conference to issue timetable orders.
The Court made the following orders: (1) Deng is to repay Zheng $258,137.41, including the sum held in trust; (2) the internal and external accounts are prima facie evidence of the truth of their contents; (3) the parties' experts are to confer, serve reports on each other, agree where practicable, identify areas of disagreement, and list all sources of information; (4) the Registrar is to convene a telephone conference on or before 18 November 2022; and (5) the parties may seek further directions at the telephone conference.

Orders