Chen v He [2015] NZHC 32 (27 January 2015)

Last Updated: 18 August 2017

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-005671 [2015] NZHC 32

BETWEEN	ZHIXIONG CHEN Plaintiff
AND	YAO WEI HE Defendant

Hearing:	23 January 2015
Counsel:	N R Campbell QC for the Plaintiff P D Sills for the Defendant
Judgment:	27 January 2014

_{REASONS JUDGMENT OF VENNING J}

This judgment was delivered by Justice Venning on 27 January 2014 at 12.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Counsel: N R Campbell QC, Auckland

_{P D Sills, Auckland}

CHEN v HE [2015] NZHC 32 [27 January 2014]

[1] The defendant applies for:

(a) leave to file an interlocutory application out of time;

(b) an order that these proceedings be consolidated with proceedings in

CIV-2014-404-3369; and

(c) an order that the hearing scheduled for 3 February 2015 in these proceedings be adjourned.

[2] The application for consolidation and adjournment applications are opposed.

[3] These proceedings and the claim brought by Mr He against Mr Chen in the

2014 proceedings have a long history.

[4] In these proceedings, Mr Chen seeks judgment for $300,000 advanced to Mr He in 2010. Mr He defends the proceeding on the basis that the $300,000 was not advanced to him personally, but rather in accordance with a joint venture arrangement. He alleges Mr He breached the joint venture arrangement.

[5] Mr Campbell submits that the issues in the current proceedings are quite distinct to the issues proposed to be raised by Mr He in the 2014 proceedings. Mr Sills, on the other hand, submits that the elements of the claim in the 2014 proceedings are linked to the defence of the present claim.

[6] The defendant and his advisors have had a considerable period of time to bring the claim in the 2014 proceedings as a counterclaim to the existing proceedings. In May 2014, Mr Campbell referred to a discussion between counsel, noting the suggestion the defendant may make a counterclaim. He noted the plaintiff’s opposition to that and, importantly, recorded “the defendant has been threatening to bring a counterclaim since late 2012”.

[7] The initial timetable for the first fixture scheduled for this case had a close of pleadings date in October 2013. No counterclaim has been made in the proceedings.

[8] On 28 August 2014, Asher J adjourned the fixture scheduled for 8 September

2014 on Mr He’s application. That was because of Mr He’s instruction of Mr Sills as replacement counsel. The fixture for 3 February 2015 is the third fixture scheduled for what is a relatively straightforward claim. The fixture for the present claim could not be maintained if the application for consolidation is granted.

[9] The position has been reached that the applications to consolidate and adjourn the fixture are so late it is not in the interests of justice to grant them.

[10] While there will be some reference to common facts between both proceedings, the issues the Court will be required to determine in this proceeding will be different to the issues the Court will need to determine in the 2014 decisions.

[11] I note that there was a pre-trial hearing to deal with the admissibility of evidence on 20 October 2014 before Faire J. In the course of that decision, His Honour struck out a number of paragraphs of the defendant’s brief of evidence as irrelevant to the issues in the current proceedings. In part at least it is those issues, that the Court has ruled as irrelevant to these proceedings, which support Mr He’s claim in the 2014 proceedings.

[12] For those reasons, the applications for consolidation and adjournment are declined. Costs to the plaintiff on a 2B basis for the conference.

_{[13] The fixture will proceed on 3 February 2014.}

Venning J