Zespri claim must go on without lead witness, judge rules

Shanghai Neuhof wants $25 million in compensation, while Zespri's counterclaim calculates damages totalling $57 million. Photo/APN

A multi-million dollar claim against Zespri has been hanging about too long and must go to trial next year, a High Court judge has ruled.

This is despite the fact that the main witness for the company bringing the case, Shanghai Neuhof, remains in a Chinese jail.

Justice Ed Wylie is presiding over the case, first filed in May 2014, where Zespri's former Chinese importer alleges breach of contract after they were both convicted of under-declaring customs duties in China between 2008 and 2010.

For his part, Shanghai Neuhof's general manager Xiongjie Liu was sentenced to 13 years' jail. The importer wants $25 million in compensation, while Zespri's counterclaim calculates damages totalling $57 million.

Earlier this month, Shanghai Neuhof's lawyer Bruce Gray QC sought more time from the court, explaining how Liu may not get paroled until 2021.

"As I understand it, Mr Liu is the only person who can give evidence of the alleged oral contract from the plaintiffs' perspective," Justice Wylie said in his Dec. 20 decision.

"Nevertheless, I agree with Zespri that the plaintiffs knew at the time they filed their statement of claim that Mr Liu's evidence was critical for them. They knew that Mr Liu was serving a prison sentence at the time."

Having already allowed a delay in May this year, the judge could not grant another. He said repeating adjournments were unfair to others wanting to use the courts.

"Litigants cannot expect to tie up considerable amounts of court time and then seek to adjourn the trial. Obtaining a lengthy fixture in this court is already difficult and this fact causes understandable frustration for litigants," his decision reads.