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R v Chen [2020] NZDC 25807

Published 22 September 2022

Judge-alone trial — obtaining by deception — joint ventures — sale and purchase of land — cash payments — false representation — claim of right — Crimes Act 1961, ss 2 & 240. The defendant was a property developer who had entered into four joint ventures with three individuals (the complainants), concerning the purchase, development and intended subsequent sale of parcels of rural land to be developed for housing. The defendant's contribution to each joint venture was to purchase a piece of land and to manage its development into a piece of residential property; each complainant was to provide money required to purchase and develop the land, by way of a loan repayable from the sale proceeds of each project. As part of the agreements, two of the complainants had made substantial cash payments to the defendant. The complainants alleged that the defendant had told them that the payments were for a real estate agent acting for the vendors of the properties that were the subject of the joint venture agreements. The defendant had allegedly told the complainants that they had to make the payments in order to secure their purchases of the parcels of land. The payments did in fact not go to the real estate agent. As a result, the defendant faced two charges of obtaining a valuable consideration by deception. The defendant argued that the payments were always meant for her (for her services as an agent), that she had made this clear to the complainants and that she had not told them that the payments were for a real estate agent. The Court found that none of the joint venture agreements made it clear what the purpose of the cash payments was, or who was the true intended recipient. Having heard evidence from two of the complainants and from the defendant, the Court found the complainants to be credible witnesses. By contrast, the Court found that the defendant's actions were insufficient to warrant payments as an agent. Further, the evidence established that the defendant had indeed told the complainants that the payments were to go to the real estate agent. Nor did the defendant have claim of right to the payments. The Court found the defendant guilty on both charges. Judgment Date: 27 January 2021