Americhip, Inc v Dean [2016] NZHC 1864 (11 August 2016)

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BETWEEN	AMERICHIP, INC Plaintiff
AND	JASON CHARLES DEAN First Defendant
AND	JUAN CHEN Second Defendant

Hearing:	4 August 2016
Counsel:	D J Goddard QC and L Theron for Plaintiff (C Cross in attendance) No Appearance for Defendants
_Judgment:	_{11 August 2016}

[1] The plaintiff, Americhip, claims that the defendants, Mr Jason Dean and Ms Zita Chan (to whom I will refer by her Chinese name, Juan Chen) have defrauded it of more than USD 12 million by means of a number of dishonest schemes, but primarily through an elaborate scheme involving submission of false or inflated invoices for manufacturing work done for Americhip by various companies in China.

[2] Americhip also claims that Mr Dean used some NZD 2 million of the proceeds to purchase a property in Auckland (the Mairangi Bay property).

[3] Americhip seeks an order that the defendants pay to it the sum of USD 12.9 million plus interest by way of an account of profits and/or by way of equitable compensation. This amount is calculated by reference to the gains made by the defendants from their breaches of the fiduciary duties it is alleged they owed to Americhip, which gains are contended in this case to be the same as (and possibly greater than) the loss to Americhip as a result of the inflated payments. In the alternative Americhip seeks damages in tort for the same amount.

[4] Americhip also seeks declarations that the defendants hold the proceeds of the fraud, including the Mairangi Bay property, on constructive trust for Americhip.

[5] The proceeding was filed in September 2013. During the following two years there were a number of interlocutory hearings in this Court and in the Court of Appeal.

[6] In due course freezing and disclosure orders were obtained in Hong Kong and Singapore. The defendants’ failure to comply with such orders ultimately led to the making of unless orders and an order appointing receivers of the Mairangi Bay property.

[7] By September 2015 the defendants had ceased participation in the proceeding. Their counsel was granted leave to withdraw by Heath J on

15 September 2015. Their solicitor was granted leave to withdraw as solicitor on the record by Woolford J on 14 October 2015.

[8] On 2 October 2015 an order was made that the proceeding be listed for formal proof. That order was sent to the defendants’ solicitor on 2 October 2015 prior to his being granted leave to withdraw. On 14 October 2015 Woolford J requested that the defendants’ solicitor notify the defendants that service of any future documents in this proceeding would be on Mr Dean’s mother at her postal address.

[9] The present application is governed by r 15.9 of the High Court Rules which relevantly states:

(4) The plaintiff must, before or at the formal proof hearing, file affidavit evidence establishing, to a Judge’s satisfaction, each cause of action relied on and, if damages are sought, providing sufficient information to enable the Judge to calculate and fix the damages.

[10] In support of its application Americhip has filed the following three affidavits:

(a) The affidavit of Tim Clegg, the CEO, Chairman of the board of directors and majority shareholder of Americhip, which sets out the history of Americhip’s dealings with the defendants.

(b) The first affidavit of Mr Primoz Samardzija, the Executive Vice President of Americhip, which provides a detailed explanation of the alleged fraud, attaches the supporting evidence and provides calculations of the defendants’ gain and Americhip’s loss;

[11] Americhip also relies on the following affidavits filed at earlier stages of this litigation:

plaintiff’s application for summary judgment, sworn 23 August 2013; (b) the affidavit of Mr Mark Vanderburg sworn 27 August 2013;

[12] Unless a party wishing to rely on foreign law pleads and proves that law, the

[13] In the Fourth Amended Statement of Claim dated 24 April 2015 Americhip pleads that Mr Dean and Ms Chen:

(a) were in a relationship of employment or agency with Americhip, the terms of which included a duty of good faith, loyalty and honesty;

(b) misrepresented that prices submitted for product were the true prices, manufacturers on whose behalf the prices were submitted were the true manufacturers, payees or recipients nominated were either the true manufacturers or agents of those manufacturers, and monthly expense reports were true statements of expenses of Americhip

(c) inflated prices that they submitted to Americhip and either retained the amounts by which the prices were inflated or received unauthorised payments from contract manufacturers or third parties engaged in procuring the manufacturers to do manufacturing work (referred to as brokers);

(d) charged Americhip for work done by Americhip Shenzhen staff and submitted inflated expense reports;

(e) concealed their relationship with and involvement in or with brokers, contract manufacturers and/or nominated payees; and

¹Americhip Shenzhen (Trading) Ltd was a wholly foreign owned enterprise owned by a Hong Kong corporation, Parkchester Group Ltd, of which Mr Clegg was the managing director and majority shareholder.

(b) the Mairangi Bay property was purchased with funds that Mr Dean and Ms Chen had diverted from Americhip.

(b) Breach of fiduciary duty in respect of Mr Dean; (c) Breach of fiduciary duty in respect of Ms Chen; (d) Knowing receipt (Ms Chen);

[16] Mr Clegg explains that the core business of Americhip has always been focused on designing and selling innovative custom advertising and merchandising products built to order in China, occasionally with some finishing work done in the United States. In his affidavit he addresses in substantial detail:

[17] I accept Mr Clegg’s evidence that Mr Dean and Ms Chen were employees of Americhip and Americhip Shenzhen respectively, that as such they were paid salaries and bonuses but they were not authorised to take profits or margins on orders placed by Americhip with any suppliers. I reject the proposition which has been advanced on their behalf in the earlier course of this proceeding that Mr Dean and Ms Chen were not employees but rather consultants or intermediary agents who were entitled to take a profit margin on Americhip’s transactions.

[18] Mr Clegg outlines how, starting in mid-2012, he began to suspect that Mr Dean had been stealing from Americhip for a number of years. His suspicion was aroused from reports received from Americhip executives, Mr Vanderburg and Mr Samardzija, who visited China on numerous occasions in 2011 and 2012. Mr Clegg explained:

72 I now suspect that the following was going on: At Jason’s request Americhip issued a PO to Color Bright or another Contract Manufacturer involved in the overall fraud scheme. Jason took his usual unauthorized margin out of the funds we paid to the Hong Kong-based Recipient. And because Jason was providing sub-contract labour in China, using the Americhip Shenzhen employees, Jason was also in a position to get paid in China from the principal Contract Manufacturer for the sub-contract work our own employees did.

[19] In about June 2012 Mr Clegg decided to shut down Americhip Shenzhen, his decision being largely driven by his concern that Mr Dean was running a very large scam on Americhip. Mr Dean was dismissed on 15 October 2012. Until that time Mr Clegg’s suspicions had been focussed on Mr Dean but shortly after the dismissal of Mr Dean Mr Clegg received a telephone call from a woman he understood to be Mr Dean’s wife. Mr Clegg deposed:

Shortly after Jason and Zita were dismissed, I received a telephone call from Yvonne, the woman I understood to be Jason’s wife. Over that call and subsequent calls and emails, she told me that:

(a) She had divorced Jason after learning that he had fathered a child with Zita (which explained Zita’s absence from work for about a year);

(b) Jason and Zita were jointly involved in a scheme to set up false corporate identities and bank accounts, and to have those false fronts submit inflated quotes to Americhip;

(d) Jason and Zita had used the stolen money to purchase real estate in Hong Kong and mainland China;

(e) Jason had purchased interests on oil companies using stolen money from Americhip; and

[20] In light of that information, in May 2013 Mr Clegg directed Americhip staff to conduct a thorough investigation which uncovered the extent of the fraudulent activities of Mr Dean and Ms Chen and culminated in this proceeding. Inquiries undertaken in New Zealand disclosed the acquisition by Mr Dean of the Mairangi Bay property and a caveat was lodged against the title to that property in favour of Americhip.

[21] Mr Clegg then travelled to New Zealand. On 14 August 2013 in the presence of his then New Zealand counsel, Mr Mark van Leeuwarden, and a private investigator, Ms Ainsley van Leeuwarden, Mr Clegg met with Mr Dean and Ms Chen at the Mairangi Bay property. He deposed that during that meeting both Mr Dean and Ms Chen confessed to stealing from him, apologised for having done so and committed to repaying the amounts they had taken. That confession was witnessed by Mark and Ainsley van Leeuwarden and is recorded in the latter’s

[22] Although Mr Dean and Ms Chen agreed to meet with Mr Clegg again the following day at the office of Warden Consulting, they did not attend the meeting. Mr Clegg deposes that they disappeared from the Mairangi Bay property and

[23] The manner in which Mr Dean and Ms Chen defrauded Americhip in the period from 2004 to 2012 is conveniently summarised in counsel’s submission in this way:

(c) setting up fake or dummy companies in Hong Kong that they controlled, with names similar to the true manufacturers, and directing payments to those companies;

(d) directing payments to other entities which paid the whole or some of the money on to Mr Dean and/or Ms Chen;

(e) using Americhip Shenzhen staff to do manufacturing work (which was then invoiced as if it had been done by a third party); and

(f) claiming amounts from Americhip in respect of expenses that had not been incurred.

[24] Those submissions explain that Americhip has been handicapped in its endeavours to prove the full extent of the fraud:

7.3 Because the banks in Hong Kong only hold bank account records for seven years, Americhip has only been able to obtain bank records dating back to mid-2008. Its calculation therefore focuses on the amounts fraudulently obtained from mid-2008 onwards. In the case of three Recipients the pattern of the fraud is sufficiently clear that it is possible to assess the amount defrauded prior to this time.

7.4 Because of the limited nature of the evidence that is available to Americhip and the fact that the defendants are no longer participating in this proceeding and have failed to provide the information directed by the Court, or any discovery, it is not possible to provide the Court with a comprehensive picture of the fraud and an exact calculation of the amount taken. The evidence that is

available establishes that Mr Dean and Ms Chen accumulated a very large fund of money from Americhip’s payments towards product and Americhip Shenzhen expenses from which they must have paid for actual manufacturing costs and expenses of the Americhip Shenzhen office. However there is little evidence of these “legitimate” payments. Where possible Americhip has attempted to identify them so that they can be taken into account in the formulation of its claim. It is possible that some of the operating expenses of Americhip Shenzhen, including the salaries of its employees, were in fact paid by other entities involved in the fraud.

[25] To the extent possible the money flows from Americhip to Mr Dean and Ms Chen are set out in the very extensive first affidavit of Mr Samardzija, the body of which runs to 42 pages and which is supported by four separate volumes of exhibits. His analysis is helpfully summarised in a table entitled “Payment and Fraud Summary Spreadsheet” which analyses the flows of funds that Americhip paid to 32 different recipients for intended payment to 26 different contract manufacturers.

[26] Mr Samardzija explains that he divided the 32 recipients into five classes: (a) “Direct Control” Recipients;

He proceeds to analyse the identified flows of funds and calculates that there was a diversion of funds to Mr Dean and Ms Chen of US$12,929,347.02.

[27] Those calculations are analysed still further in counsels’ submissions into four tables, namely:

[28] The figures from those four tables are then brought together in table 5 which

Table 1 3,042,623.73

Table 2 329,854.61

3,372,478.34

Less ³ (156,352.40)

3,216,125.94 3,216,125.94

Table 3 3,171,423.69

Less³ (712,680.33)

2,458,743.36 2,458,743.36

Table 4 3,880,371.99

Less³ (383,791.41)

3,496,580.58 3,496,580.58

Payments that can be estimated based on later pattern

156,352.40

712,680.33

383,791.41

1,252,824.14 1,252,824.14

Payments made in response to 2,505,073.00 fraudulent expense claims

12,929,347.01

[29] Americhip’s focus is on the equitable causes of action because the primary remedies it seeks are declarations of constructive trust over the proceeds of the fraud and an order that the defendants pay a specified sum by way of an account of profits. Consequently I address the causes of action in a different order from the pleading.

[30] A claim for breach of fiduciary duty has three elements: (a) the defendant owes the plaintiff a fiduciary duty; (b) the defendant breaches that duty; and

[31] Employees and agents owe fiduciary duties of loyalty to their employers or principals. Mr Dean was an employee of Americhip from 2003 until 2012. Ms Chen was an employee of Americhip from 2004 to 2006 and of Americhip Shenzhen from

2006 to 2009 and from 2010 to 2012. Both owed fiduciary duties to Americhip during the period of their employment by Amerchip. I also consider that following

2006 Ms Chen continued to owe fiduciary duty to Americhip, she being a person in whom Americhip placed a high degree of trust and confidence.

[32] The duties of loyalty of a fiduciary include the obligations to: (a) act in good faith;

(d) not act for his or her benefit or the benefit of a third person without the informed consent of his or her employer or principal.

[33] From the evidence I conclude that the defendants breached those duties by the conduct referred to at [23] above and that they profited from their breach of fiduciary duties to the extent of the sums received by them referred to at [28] above.

(b) a defendant beneficially receives assets which are traceable as representing the claimant’s assets; and

[35] The evidence satisfies me that Mr Dean induced Americhip to pay funds directly and indirectly to Ms Chen in breach of his fiduciary duties and that Ms Chen received those funds knowing that they were obtained in breach of fiduciary duty. That Ms Chen must have known that Americhip was induced by Mr Dean to pay the funds in breach of fiduciary duty can be inferred from the circumstances of the fraud, including the elaborate steps required to set up the payment channels and conceal that from Americhip. It is also confirmed by her statements at the meeting in Auckland on 14 August 2013.

[36] Consequently I find that Ms Chen is personally liable to provide equitable compensation or an account of profits in respect of all the sums received by her. The total amount for which she is liable on that basis is USD 3,976,971.73 calculated as follows:

1. Companies owned by Ms Chen (Table 1)	USD 3,042,623.73
2. Juan Chen accounts (Table 2)	USD 314,399.61
3. Payments from pass-through recipients (Guo Yuanzhen)	USD 351,803.03
4. Payments to Ms Chen’s accounts from kick-back recipients (Hong Kong Tiara)	USD 619,948.39 to Sun Tu (account controlled by Ms Chen)
Total	USD 3,976,971.73

[37] The elements of a claim of dishonest accessory liability (or dishonest assistance to a breach of fiduciary duty) are:

(c) the defendant acts dishonestly in rendering that assistance, namely that having regard to the actual (subjective) knowledge of the defendant, the defendant’s conduct is dishonest by the ordinary standards of reasonable and honest people (an objective test); and

(d) the plaintiff suffers loss as a result of the breach of fiduciary duty that the defendant dishonestly assisted.

[38] It is apparent that Ms Chen was closely involved in the fraud perpetrated by

Mr Dean and assisted him to engage in the breach of fiduciary duty by, for example:

(a) incorporating false companies similar to those of the contract manufacturers to act as recipients of Americhip payments;

(b) sending false information to Americhip about contract manufacturers, recipients, prices and expenses; and

[39] The circumstances of the fraud referred to at [23] above and the matters known to Ms Chen rendered her participation contrary to normally acceptable standards of honest conduct. I consider that her involvement in the fraud can be analysed as giving rise to dishonest accessory liability and as a consequence she is personally liable to pay compensation in respect of the loss suffered by Americhip.

[40] In view of the findings made on the equitable causes of action it may be unnecessary to make a determination on the first cause of action in deceit. However for completeness I accept that the defendants made false representations to Americhip that:

(a) prices submitted by the defendants to Americhip were the true prices for the manufacture of products;

(b) manufacturers on whose behalf the prices were purportedly submitted were the true manufacturers of products;

(c) payees that they directed Americhip to pay were the true manufacturers of products contracted to Americhip or agents of the true manufacturers; and

(d) the monthly expense reports of Americhip Shenzhen submitted by the defendants were true statements of the expenses of Americhip Shenzhen.

[41] It is apparent that Mr Dean and Ms Chen knew those representations were false and intended that Americhip would rely upon them and make the requested payments to the recipients nominated.

[42] Americhip suffered loss as a result of relying on the representations. That loss is equal to the gains initially received by the defendants because the fraud

involved artificially inflating amounts paid by Americhip to manufacturers and amounts payable by Americhip for expenses of the Americhip Shenzhen office, with the defendants pocketing the difference.

[43] Counsel acknowledged that the principles underlying, and the conceptual framework for, the imposition or recognition of a constructive trust generally are far from settled. However they note that the authors of Equity and Trusts in New Zealand identify the following cases as common examples of institutional

(a) where a fiduciary makes an improper profit from his or her fiduciary position; or

[44] It is submitted for Americhip, and I accept, that Americhip is the beneficial owner of funds in other assets presently held by the defendants that are derived from payments made by Americhip on two bases:

(a) any benefit acquired by an agent as a result of his agency and in breach of his fiduciary duty is held on trust for the principle including bribes and secret commissions;

(b) those who have been defrauded of property should be regarded as beneficial owners of the property.

[45] The rules of equitable tracing provide for the tracing of the equitable proprietary right in property initially obtained by a breaching fiduciary or knowing recipient into subsequent exchanges or acquisitions. Misappropriated money can be

_{traced through current accounts with positive balances and into
subsequent assets}

⁴Andrew Butler (ed) Equity and Trusts in New Zealand (2^nded, Thomson Reuters, Wellington,

purchased from such accounts. Where money has been withdrawn and dissipated, any money remaining in the current account will be presumed to belong to the claimant. If there is insufficient money in the account to meet the plaintiff’s claims but the withdrawn money has been used to acquire traceable assets, the plaintiff can claim those assets or a charge over them.

[46] A lack of precision as to which specific payments were legitimate and which were misappropriated will not pose an impediment to tracing the wrongly obtained profit into other assets.⁵That approach is consistent with the decision of the Privy Council in The Federal Republic of Brazil v Durant International Corporation in which the Court rejected strict rules of tracing and required that a claimant establish a coordination between the depletion of the trust fund and the acquisition of the asset the subject of a tracing claim, looking at the whole transaction such as to warrant the Court attributing the value of the interest acquired to the misuse of the trust fund.⁶

Ms Theron handed up a very helpful document headed “Tracing to bank accounts”

which analysed the evidence relating to the tracing of various sums fraudulently paid.

[47] It is apparent that most of the Americhip payments that were paid on to Mr Dean were paid into his HSBC Hong Kong bank account number 622073393888. Payments made for Americhip Shenzhen expense claims were also paid into that account.

[48] Mr Dean’s HSBC Hong Kong bank records show approximately USD 1,688,800 in that account being converted into NZD 2 million and being transferred to his HSBC New Zealand account on 5 April 2013. The New Zealand bank records show that sum coming into that account on 8 April 2013 and the amount of NZD 1,896,958.76 being sent on 11 April 2013 to a firm of solicitors who acted for Mr Dean on the purchase of the Mairangi Bay property. The certificate of title shows the transfer of the property to Mr Dean on 12 April 2013 and a Property

_{Sales Report from Terranet indicates that the sale price was NZD
1,995,000.00.}

⁶The Federal Republic of Brazil v Durant International Corporation [2015] UKPC 35.

[50] Some other assets of significance were disclosed by the defendants in response to the freezing orders obtained by Americhip. HSBC Life (International) Ltd advised that there is a sum of USD 307,842.28 payable to Mr Dean arising out of the cancellation of two policies (numbered 20612535 and 20758258). It also appears that assets are held in Ms Chen’s China Merchants Securities (HK) Ltd account numbered 01837963 comprising shares in a gold mining company.

[51] In addition it has been identified that there are funds in Mr Dean’s HSBC

636802407833 at Hong Kong and Shanghai Banking Corporation Ltd, Tsim Sha Tsui branch, and account numbered 3401998782 at DBS Bank (Hong Kong) Ltd.

[52] In view of the evidence as analysed in the “Tracing to bank accounts” analysis I make orders in respect of those various assets in terms of paras (b)(iii) (A) to (E) of the draft judgment.

[53] Pursuant to s 87 of the Judicature Act 1908 the Court has a discretionary power to award interest on all or any part of a debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of judgment, either at the prescribed maximum rate of five per cent or some lower rate.

[54] Courts of equity have jurisdiction to award interest that is outside and additional to that statutory power. The principle that a fiduciary must account for any profit generally requires that a defaulting beneficiary should pay the interest he

[55] It appears that the stolen funds have been held in interest-bearing accounts, mostly in Hong Kong. However, given the difficulty in calculating actual interest earned and the approximate nature of the overall calculation, notwithstanding that in certain cases compound interest may be awarded, Americhip elects to seek only simple interest at the Judicature Act rate of five per cent on the amounts that went to Mr Dean and Ms Chen from the date of payment to them. That calculation was undertaken by Mr Samardzija and amounts to USD 2,866,906.00.

[56] Americhip claims costs on a 2B basis in accordance with a table attached to counsels’ written submissions. I award costs in the sum of NZD 26,983.00 and disbursements of NZD 1,350.00.

[57] I make orders in accordance with the draft submitted by Americhip’s counsel.

[59] A New Zealand Court may give judgment expressed in foreign currency if that best expresses a plaintiff’s loss. The relevant payments in this case were made in US dollars and consequently the most appropriate currency for the judgment is US dollars.

[60] The order at (b)(iv) provides that any recoveries made by Americhip should be credited against the judgment sum referred to in order (a) to the extent of the lesser of the sum applied to acquire the asset or the net amount realised. That order reflects my acceptance of the Americhip submission that any gains made in excess of NZD 1,995,000 on the realisation of the Mairangi Bay property should not be deducted from the judgment sum because Americhip was entitled to them in addition to the judgment sum.

[61] Finally, having regard to the fact of the appointment of receivers to the Mairangi Bay property, leave is reserved both to the plaintiff and to the receivers to apply to the Court for any further orders or directions which may be required to give

High Court of New Zealand Decisions

Americhip, Inc v Dean [2016] NZHC 1864 (11 August 2016)

High Court of New Zealand

Americhip, Inc v Dean [2016] NZHC 1864 (11 August 2016)