Zhou v Armadale Nineteen Limited - [2016] NZHC 2191

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2340 [2016] NZHC 2191

BETWEEN
BINGYAN ZHOU

Plaintiff

AND

ARMADALE NINTEEN LIMITED First Defendant

ZHAOWEI QIU (aka Zhao Wei Qiu) Second Defendant

Hearing: 15 September 2016

Appearances:

S C R Raju for Plaintiff
No appearance for Defendants

Judgment:

15 September 2016

JUDGMENT OF LANG J

[on application for judgment by way of formal proof]

This judgment was delivered by me on 15 September 2016 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

ZHOU v ARMADALE NINTEEN LTD [2016] NZHC 2191 [15 September 2016]

[1] In this proceeding the plaintiff, Mr Bingyan Zhou, seeks judgment against the first and second two defendants in the sum of $250,000 and $200,000 respectively.

[2] The defendants were served with the proceeding by way of substituted service, but have taken no steps to defend Mr Zhou’s claims. For that reason the hearing has proceeded by way of formal proof. The evidence consists of an affidavit sworn by Mr Zhou in which he sets out the factual basis on which he advances his claims, together with oral evidence given by Mr Zhou at the hearing.

Background

The first cause of action: claim against Armadale Ninteen Ltd for the sum of
$250,000

[3] On 18 October 2013, Mr Zhou entered into an agreement for the sale and purchase under which he agreed to buy a vacant section situated at 19 Armadale Road, Remuera (the Armadale Road property). The agreement for sale and purchase provided for the purchaser to be Mr Zhou and/or his nominee. Mr Zhou agreed to pay the sum of $3.38 million for the property and to pay a deposit of $250,000. He subsequently paid the deposit to the real estate agents acting on the vendors behalf in relation to the sale.

[4] On 30 November 2013, Mr Zhou entered into a Deed of Nomination under which he nominated the first defendant, Armadale Ninteen Limited (Armadale Ninteen), as purchaser under the agreement for sale and purchase in respect of the Armadale Road property. The second defendant, Mr Zhao Wei Qiu, is the sole director of Armadale Ninteen. Mr Qiu signed the Deed of Nomination on behalf of Armadale Ninteen in his capacity as director of the company.

[5] Clause 3 of the Deed of Nomination required Armadale Ninteen to account to Mr Zhou for the deposit and any other monies he might pay to the vendor under the agreement for sale and purchase. Mr Zhou deposes that Armadale Ninteen failed to repay the deposit that he had paid to the vendors. He arranged for a statutory demand to be served on Armadale Ninteen on 2 September 2015 but has received no

payments to date. Mr Zhou therefore seeks judgment in the sum of $250,000 against

Armadale Ninteen on that basis.

The second cause of action: claim against Mr Qiu for the sum of $200,000

[6] Mr Zhou deposes that Armadale Ninteen duly completed the purchase of the Armadale Road…

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.

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Details

Case: [2016] NZHC 2191
Decision Date: 15 September 2016

CaseChat Overview and Summary

The case of Zhou v Armadale Ninteen Limited, heard in the High Court of New Zealand Auckland Registry, involves Mr Bingyan Zhou, the plaintiff, seeking a judgment against the first defendant, Armadale Ninteen Limited, and the second defendant, Mr Zhao Wei Qiu, for the amounts of $250,000 and $200,000 respectively. The defendants did not appear in court and were served by substituted service, leading to the proceedings being heard as formal proof. The plaintiff provided evidence through an affidavit and oral testimony, outlining the basis of his claims. The plaintiff's claims stem from two causes of action: one against Armadale Ninteen Limited for the non-repayment of a deposit and another against Mr Qiu for a personal loan that was not repaid.

The court needed to decide whether the plaintiff was entitled to the claimed amounts. For the first cause of action, the court found that Armadale Ninteen Limited had no defense, and the plaintiff was entitled to the deposit of $250,000 with interest and costs. The second cause of action required more scrutiny. The loan agreement did not specify a repayment date, implying it was repayable on demand. The plaintiff's affidavit and oral testimony established that he had orally demanded repayment of the loan on multiple occasions in 2014, which Mr Qiu failed to fulfill. This satisfied the court that the plaintiff was also entitled to the $200,000 loan amount plus interest.

The court granted judgment in favor of the plaintiff against both defendants. Armadale Ninteen Limited was ordered to pay $250,000 plus interest from 7 October 2015, while Mr Qiu was ordered to pay $200,000 plus interest from the same date. The plaintiff was awarded a single costs order against both defendants, to be calculated on a Category 2B basis, including disbursements as fixed by the Registrar.

Orders