Zheng v Lyndon - [2021] NZHC 471

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2182

[2021] NZHC 471

BETWEEN
LU ZHENG AND HIBISCUS INDEPENDENT TRUSTEES 2008 LTD
First Applicant

ZHENG LU HOLDINGS LTD
Second Applicant

AND

DAVID JULIAN RICHARD LYNDON, JENNIFER ROBYN LYNDON and LISA MICHELLE ARCHER

Respondents

Hearing: 26 February 2021

Counsel:

P J Dale QC for Applicants S J Tee for Respondents

Judgment:

11 March 2021

JUDGMENT OF BREWER J

This judgment was delivered by me on 11 March 2021 at 3:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Skinners Law (Auckland) for Applicants Morton Tee Ltd (Auckland) for Respondents

ZHENG & HIBISCUS INDEPENDENT TRUSTEES 2008 LTD v LYNDON & ORS [2021] NZHC 471 [11
March 2021]

Introduction

[1] The applicants apply to transfer a proceeding from the District Court to this Court.1 The application is based upon s 89 of the District Court Act 2016 (“the Act”).

[2] In short, the applicants commenced proceedings in the District Court in 2016 claiming damages to their market garden business resulting from the presence of poplar trees on a boundary.

[3] On 20 February 2018, an order was made in the District Court giving the applicants until 9 March 2018 to:

(a)elect whether to file any application to transfer the proceedings to the High Court; and

(b)to file an amended statement of claim.

[4] On 7 November 2018, a further amended statement of claim was filed alleging total losses of $1,477,825. However, the quantum sought was $350,000 (being the limit of the District Court’s jurisdiction).

[5] On 11 December 2018, the case was put on the ready list in the District Court. No trial date has yet been allocated.

[6] There has been a change of counsel. Mr Dale QC now represents the applicants. Upon his advice, the applicants now wish to pursue the total quantum of their damages. It is expected the quantum will increase from that set out in the further amended statement of claim and a further pleading will be required.

[7] Mr Dale, on behalf of the applicants, filed an application in the District Court on 17 September 2020 to transfer the proceeding to this Court. An affidavit was filed in support. The respondents opposed, and also filed an affidavit.

1 Zheng v Lyndon DC North Shore CIV-2016-044-1425.

[8] On 30 October 2020, Judge Harrison declined the application to transfer the proceeding. The only reason he gave was that delay will occur if the proceeding were transferred to the High Court.

Discussion

[9]Section 89 of the Act provides:

High Court Judge may order removal of proceeding into High Court

(1)A High Court Judge may, on application by a party to a proceeding, order the removal of the proceeding into the High Court if the Judge is satisfied that it is desirable to do so.

(2)In deciding whether to make an order under subsection (1), the Judge must have regard to the following factors:
(a)the nature of the case:

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 Lyndon

Details

AGLC: Zheng v Lyndon [2021] NZHC 471
Case: [2021] NZHC 471
Decision Date: 11 March 2021

CaseChat Overview and Summary

The case of Zheng v Lyndon involves an application to transfer proceedings from the District Court to the High Court. The applicants, Lu Zheng and Zheng Lu Holdings Ltd, are seeking to transfer their proceeding against the respondents, David Julian Richard Lyndon, Jennifer Robyn Lyndon, and Lisa Michelle Archer, which was initiated in the District Court in 2016. The applicants initially limited their claim to $350,000, the maximum amount allowable under the District Court's jurisdiction. However, they now wish to pursue the full quantum of their damages, which is significantly higher. The respondents opposed the transfer, arguing that the applicants' delay in seeking to increase their claim amount was unjust.

The primary legal issue before the Court was whether the application to transfer the proceeding from the District Court to the High Court should be granted under section 89 of the District Court Act 2016. The Court had to consider various factors, including the nature and complexity of the case, the amount in issue, the financial resources of the parties, and whether it was in the interests of justice to grant the application. The Court also had to consider whether the applicants' decision to limit their initial claim amounted to a waiver of their right to claim a higher amount, and whether the transfer would cause undue delay or prejudice to the respondents.

The Court granted the application to transfer the proceeding to the High Court. It found that the case had significant complexities and that the amount in issue far exceeded the District Court's jurisdiction. The Court also noted that if the application was not granted, the applicants could simply discontinue the proceeding in the District Court and refile it in the High Court, potentially causing further delay and prejudice to the respondents. The Court acknowledged that the initial decision of Judge Harrison to decline the transfer had not been appealed, but considered that it could review the issues afresh and that discontinuance of the proceeding could result in some claims becoming time-barred. Therefore, the Court ordered that the proceeding be removed to the High Court, with the condition that the applicants pay the respondents' scale costs as if the proceeding had been discontinued.

Orders