– Profile

Daniel has been obtaining favourable judgments for his clients as a lead counsel since 2015.

In Deng v Zheng [2022] NZSC 76, Daniel and Ezra secured their first Supreme Court victory, in particular:

• The Court agreed with our submissions on partnership law.
• The Court agreed with our analysis of the evidence and how they support the finding of a partnership.
• The Court agreed with our submission on an appellate court’s ability to revisit factual findings of the trial court.

This Supreme Court decision was for an appeal by Mr Deng against an earlier Court of Appeal decision. In 2017, Mr Zheng sued Mr Deng for, among other things, breach of partnership obligations. Mr Deng denied that they were partners. The trial took place in 2019 resulting in Mr Zheng’s claims being dismissed. Mr Zheng appealed. Daniel and Ezra argued for Mr Zheng in the Court of Appeal in November 2020. Zheng v Deng [2020] NZCA 614 was released a month later. The Court of Appeal allowed the appeal in Mr Zheng’s favour and found that:

• Partnership can and did exist between the two men who were also co-shareholders and directors of various companies.
• s 4(2) of the Partnership Act 1908 is not a bar for finding partnership.
• Unlike the High Court’s finding, Mr Zheng was determined to be a credible witness and his evidence on contended issues was to be preferred.

In Fuati v Jin [2023] NZCA 165, Daniel defended, in the Court of Appeal, the earlier successful bankruptcy orders in the case of Jin v Fuati [2022] NZHC 718. Mr Fuati initially sued Mr Jin in a commercial dispute, but later discontinued his claims, which resulted in costs orders in Mr Jin’s favour. Mr Fuati did not pay these costs and Mr Jin brought the bankruptcy proceedings. Mr Fuati had assets that were restrained by the Commissioner of the Police under Criminal Proceeds (Recovery) Act 2009, and he argued, unsuccessfully, that such restraining order operates as an automatic stay against bankruptcy. On appeal, the Court of Appeal agreed with us that:

• Mr Fuati could have sought leave to release some of the restrained funds to pay his debts. He chose not to do so, and as such he cannot complain that he was prevented from paying his debt.
• The Australian authorities which Mr Fuati relied on, do not ultimately assist him because there are other Australian authorities which point to the other way.

In Gao v Deng [2023] NZCA 200, Daniel successfully appealed the High Court’s dismissal of his client’s without notice application for freezing order. Mr Gao claimed that Ms Deng held his money and refused to give it to him. Ms Deng resides outside of New Zealand and was able to move the money away from her New Zealand bank account. Mr Gao sought a freezing order from the High Court. His application was declined on the basis that Mr Gao did not prove that there was a risk of Ms Deng dissipating the money. Daniel appealed this without notice application (which does not seem to be a process invoked frequently). On appeal, the Court of Appeal agreed that the fact that the respondent resides overseas and has refused to hand back the money raises the risk of dissipation. It ordered the High Court to grant the freezing order accordingly.

In Xie v Chen & Anor [2023] NZDC 20999, Daniel obtained a declaration and indemnity cost award for his plaintiff client in a defamation case. The defendants were operators of a competing business. They made two extensive social media posts defaming the plaintiff, Ms Xie, alleging various dishonest and reprehensible conduct. In the proceeding, they argued that their statements were not defamatory, but if they were, they were true, or their honest opinion. The Court found that these statements were defamatory and neither the truth defence nor the honest opinion defence were made out. The Court declared that the defendants had defamed Ms Xie and were liable to pay indemnity costs.

In Yu v Xia [2023] NZHC 2485, Daniel obtained additional costs award for his plaintiff client in a defamation case. Ms Xia was Ms Yu’s co-worker and made a post accusing Ms Yu of being a prostitute. Daniel acted for Ms Yu in her defamation proceeding against Ms Xia. Ms Xia did not defend. Daniel argued for Ms Yu and obtained a formal proof judgment ([2022] NZHC 3243) in which the Court awarded her $30,000 in damages. Ms Xia then applied to set aside the formal proof judgment on the basis that she was not served properly and had no idea about the proceeding. However, upon being served with uncontradictable evidence that she was not truthful in her affidavit when she said she had mistakenly thrown out the service documents and did not know that this was a court proceeding, Ms Xia withdrew her application. The Court accordingly ordered more costs against her.

In 2022, Daniel obtained a stay of execution of judgment in Singh v Mao [2021] NZHC 2230. The plaintiff purchaser had earlier obtained summary judgment against the defendant vendor enforcing a sale of a property. The plaintiff succeeded on the basis of earlier case law suggesting that the vendor’s entrenched position may render it unnecessary for the purchaser to attend to settlement where it was clear that the vendor had defaulted on certain terms of the agreement. Daniel successfully argued that the position is no longer clear given that new clauses have been introduced into the ADLS standard form agreements to deal with disputes of this nature. A stay of execution of the judgment was granted. The further appeal itself was unsuccessful.

In 2021, Daniel persuaded the Court to set aside a default judgment in Beachlands Childcare Limited v Sweet Homeek Limited [2021] NZHC 382. The defendant had defaulted on settlement of the sale and purchase of a business. The vendor plaintiff sued. The default judgment was regularly obtained therefore the defendant had to show a reasonably arguable defence in order to set aside the judgment. The proposed defence was one of misrepresentation. The plaintiff argued that the sale and purchase agreement contained a “no reliance” clause, therefore it is a complete answer to the client’s misrepresentation defence. The Court accepted our argument that considering the relevant factors under s 50 of the Contract and Commercial Law Act 2017, the case is not as clear cut as the plaintiff asserts. The judgment was set aside on the condition of payment of costs.

In 2021, Daniel successfully challenged a decision in in Employment Court in the case of Urban Décor v Yu and Xia [2022] NZEmpC 56. In 2020, Daniel acted for the employer before the Employment Relations Authority. The employees said they had quit but afterwards were nevertheless issued with termination notices. The employees sued and claimed that they were unjustifiably dismissed. The ERA agreed with us on the facts, that the employees did say that they quit, but the ERA was of the view that case law suggests that in such circumstance the employer should give the employee a chance to cool down and cannot assume that the employee has actually resigned. Daniel led the challenge on the points of law. The Employment Court agreed with Daniel and found that “whether or not an employee has resigned is an objective test as to whether a reasonable employer, with knowledge of the surrounding circumstances, would have reasonably considered the employee to have resigned. Clear words of resignation are likely to clear that bar unless a different understanding can be informed by the surrounding circumstances.” In this challenge, the employees also argued that if they were not dismissed by the termination notice, then they were constructively dismissed. Daniel successfully argued that the necessary factual findings which the employees rely on for this claim were not made by the Employment Relations Authority. Since this is a point of law challenge, and the employees specifically chose not to do a de novo cross challenge, it is not open for them to run this claim. The employer was successful in its challenge.

In Fuati v Peng [2020] NZHC 672, Daniel acted for the defendants and successfully sought particular discovery against the plaintiffs and their associates (as third parties). The plaintiffs had sued the first defendant on the basis that they had lent her money, but she did not repay them. The discovery sought would have harmed the plaintiffs’ case by revealing the true nature of the fund transfers showing that they were not loan advances to the first defendant. The plaintiff argued that these documents were not relevant and they had no contact with the associates. The High Court did not agree with their opposition and made the orders. The plaintiffs soon discontinued their case after being unable to comply with the discovery order. The saga soon concluded with Daniel’s clients obtaining about $90,000 in costs awards.

In Fuati v Jin [2019] NZHC 1859, Daniel obtained a discharge of a freezing order in the High Court which was granted on ex-parte basis against his client. Daniel persuaded the Court that the proposed claims against his client had a very low prospect of success despite the Court had earlier taken a different view when granting the freezing order.

In TN v AK [2019] NZHC 2466, Daniel successfully appealed a Family Court judgment in the High Court. The case involved parents sending money to their child to purchase a home for the family, which was later claimed by the child’s domestic partner as relationship property. The parents succeeded on appeal in their claim that they have a trust beneficiary interest in the property. Further, post-separation adjustments were recalculated to his client’s favour.

In Zhou v Yue [2019] NZHC 2167, Daniel obtained a judgment upholding his client’s protest to the High Court’s jurisdiction on the basis that the other party should be litigating the dispute in the Family Court because the matter is part of an existing relationship property claim. This judgment is now a legal precedent in this area of the law.

In Song v Jiang [2018] NZHC 2321, Daniel maintained a freezing order that was initially obtained on ex-parte basis. The respondent sought to discharge the freezing order and advanced a wide number of attacks, including no good arguable case, inadequate evidence to support undertaking as to damages, no risk of dissipation. The Court rejected all these arguments and upheld the freezing order.

In Zhou v Yue [2018] NZHC 1298, Daniel obtained a discharge of a freezing order in the High Court which was initially granted on ex-parte basis. The Court was persuaded that the applicant had not made full and frank disclosure when making the ex-parte application and awarded increased costs against the applicant.

In Fang v MBIE [2017] NZCA 190, Daniel appeared in the Court of Appeal for the first time. Daniel advanced the position that Immigration New Zealand had not followed section 177 of the Immigration Act 2009 correctly. Immigration New Zealand maintained that they were correct, and, in any event, a previous Court of Appeal decision had already ruled in their favour. Daniel’s position is that the previous Court of Appeal decision, Singh v MBIE [2016] NZAR 93, did not deal with this issue directly, thus does not stand as ratio decidendi. Instead, the comments were obiter dictum. The Court of Appeal agreed with Daniel and ruled in his clients’ favour. This is a very rare win where migrants successfully challenged Immigration New Zealand at the Court of Appeal level.

Daniel has a strong sense of justice and fairness. He understands how immigrants sometimes find it difficult to understand the laws in the new country and uphold their rights. It is his honour to help these people to obtain equality and justice.

He enjoys all outdoor sports that New Zealand’s pristine mountains and oceans have to offer.