AN YING INTERNATIONAL FINANCIAL LIMITED V FAN HC AK CIV 2004-404-3905

AN YING INTERNATIONAL FINANCIAL LIMITED V FAN HC AK CIV 2004-404-3905 7 September 2005IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2004-404-3905BETWEEN AN YING INTERNATIONAL FINANCIAL LIMITED Plaintiff AND ZHIWEI FAN Defendant Hearing: 7 September 2005 Appearances: J Cundy for Plaintiff No appearance by or on behalf of Defendant Judgment: 7 September 2005(ORAL) JUDGMENT OF HEATH JSolicitors: Simpsons, PO Box 105984, Auckland[1] An Ying International Financial Ltd (An Ying) is a foreign currency dealer carrying on business at Auckland. From 17 June 2002 until 4 June 2004 the defendant, Mr Fan, was employed by the company. One of his duties was to deal with foreign currency transactions on behalf of customers of An Ying. [2] When the proceeding was first issued, two distinct claims were made. One was a claim in debt arising from the alleged theft of the sum of $738,799.38 committed by Zhiwei Fan. The moneys stolen were said to be the property of An Ying. The second cause of action was based on a proprietary claim designed to trace the proceeds of the theft. [3] Mareva injunctions and preservation orders were made by this Court on 23 July 2004. Subsequently, the claim has been readied for hearing. [4] In recent times no steps have been taken on behalf of Mr Fan. Indeed, it has recently been discovered that he is in custody at Wanganui Prison, having been convicted of various fraud related charges. [5] Justice Priestley, on 16 February 2005, directed that Mr Fan be given notice of a formal proof hearing. I am satisfied from Mr Chisholm's affidavit that adequate notice has been given and that Zhiwei Fan has not taken any steps. Accordingly, I now proceed to deal with the claim on formal proof. [6] Mr Cundy has provided me with an affidavit of Hongzhang Yang in support of the application for judgment. Hongzhang Yang is a director of An Ying and has been employed by that company as manager of the finance department of the group of companies of which An Ying is part. He has knowledge of the particular matters in issue. [7] The evidence establishes that the sum of $738,799.38 was stolen by Mr Fan from the company. The last theft occurred on 7 January 2004. There have also been a number of payments and transfers of property from Mr Fan which have had theeffect of reducing the amount to be claimed. Those credits arose during the period between 16 June 2004 and 18 May 2005. [8] I am satisfied from the evidence that the total principal outstanding at the present time is $156,707.82. [9] Interest is claimed on that sum from 7 January 2004. Interest was calculated initially on the sum of $738,799.38 for the period that sum was owing. Thereafter, interest has been recalculated on a lower principal sum after taking into account relevant credits. [10] I am satisfied from the evidence that the total interest to be awarded is $60,839.36, making a total of the claim and interest as at today's date of $217,547.18. Interest will run on the judgment sum in accordance with r538 of the High Court Rules at the rate prescribed by s87 of the Judicature Act 1908. [11] Costs are also sought. They are sought on a 2B basis in respect of the proceedings generally, but on a 2C basis in respect of the Mareva injunction application. I am satisfied that that allowance for costs is appropriate. [12] Accordingly, judgment is entered in favour of An Ying in the sum of $156,707.82 with interest thereon at the rate of 7.5% per annum from 7 January 2004 on the basis I have indicated. That interest amounts to $60,839.36. The total judgment sum is $217,547.18. [13] Costs are awarded on the claim on a 2B basis save for those attendances in respect of the Mareva application. The Mareva costs shall be calculated on a 2C basis. Disbursements shall also be fixed by the Registrar. [14] The claim on which An Ying has proceeded to judgment today is based on its claim for debt in the first cause of action of its Statement of Claim. The second cause of action that pleaded a proprietary claim is not pursued. There is no basis to continue the Mareva injunctions and preservation orders. They are discharged. ____________________ P R Heath J