Chung-Ching v Tang Shuo Development Company Limited

[2009] NZCA 201

IN THE COURT OF APPEAL OF NEW ZEALAND

CA603/2008
[2009] NZCA 201

BETWEENTIEN CHUNG-CHING AND HO SUEI-LAI, AND LIN CHAO TUNG

Appellants

ANDTANG SHUO DEVELOPMENT COMPANY LIMITED

First Respondent

ANDKENSINGTON SWAN

Second Respondent

Hearing:21 May 2009

Court:Baragwanath, Hugh Williams and Winkelmann JJ

Counsel:R J Hooker and T Homes for Appellant

M McClelland and A E Liew for First Respondent
No appearance of or for Second Respondent

Judgment:21 May 2009 at 12 noon

ORAL JUDGMENT OF THE COURT

A        LIN CHAO TUNG IS ADDED AS AN APPELLANT.

B        The appeal is allowed.

C(1)  A condition of the order allowing the appeals is that the three appellants shall file in this court an undertaking to the company and its directors that in the event it is established that the share certificate each holds is a forgery or is otherwise false and they knew it was a forgery or otherwise false, then the sum of money they have received from the company shall be repaid together with the interest by each appellant to the company.  Each appellant shall file an affidavit in court deposing that they have assets greater than $NZ250,000 to support the undertaking.

(2)This order shall not be sealed or take effect until the said undertaking and affidavits have been filed.

DLeave is reserved to other plaintiffs to apply to this court for extension of time to appeal and for like orders to be made in respect of the case.  The leave does not extend to applications which are not the subject of consent.

EThe appellants are entitled to costs fixed on the basis of one quarter of the category 2 C rate for costs in the High Court and usual disbursements and in this Court costs fixed on a category A basis and usual disbursements

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REASONS OF THE COURT

(Given by Baragwanath J)

[1]       As a result of discussion between the bench and bar it seemed likely this appeal from Associate Judge Gendall could be resolved by certain undertakings on the part of the appellants. 

[2]       Counsel having now had the opportunity to consider the matter and take instructions have agreed that the appeals of Tien Chung-Ching and Ho Suei-Lai should be allowed.  Furthermore, the original plaintiff Lin Chao Tung will by consent have leave to appeal out of time, he is joined as an appellant and his appeal also is allowed.

[3]       A condition of the order allowing the appeals is that the three appellants shall file in this court an undertaking to the company and its directors that in the event it is established that the share certificate each holds is a forgery or is otherwise false and they knew it was a forgery or otherwise false, then the sum of money they have received from the company shall be repaid together with the interest by each appellant to the company.  Each appellant shall file an affidavit in court deposing that they have assets greater than $NZ250,000 to support the undertaking. 

[4]       This order shall not be sealed or take effect until the said undertaking and affidavits have been filed.

[5]       Counsel advise that it may be possible for consent to be reached in relation to other plaintiffs who have not to date filed notice of appeal.  Leave is reserved to such plaintiffs to apply to this court for extension of time to appeal and for like orders to be made in respect of the case.  The leave does not extend to applications which are not the subject of consent.

[6]       The appellants are entitled to costs fixed on the basis of one quarter of the category 2 C rate for costs in the High Court and usual disbursements and in this Court costs fixed on a category A basis and usual disbursements.

[7]       We add that we have viewed with concern the cost and delay that have been incurred in resolving the disputes between the parties.  Our analysis of the case, assisted by the admirable judgment of the learned Associate Judge, and the excellent submissions on each side, enable us to discern that the contentions of the appellants Tien Chung-Ching, Ho Suei-Lai and Lin Chao Tung were unanswerable unless it should prove they had been party to a forgery or other involvement in the creation of a false document.  The evidence established quite plainly, as was properly acknowledged by Mr McClelland for the respondents, that all other issues had been disposed of satisfactorily by the evidence before the High Court and the determinations of the learned Associate Judge. 

[8]       A primary function of the courts is to bring disputes to termination justly, efficiently and economically.  Any further delays in achieving resolution, for which there is no substantial justification, will be viewed seriously by the Courts which have powers to order increased or indemnity costs against those responsible, whether they be parties or non parties to the litigation.  It is our expectation that the good sense displayed on both sides today will continue to be exhibited until resolution of outstanding issues.

[9]       We record at Mr McClelland’s request that the orders of this Court entail pro tanto a modification of the Mareva injunction that is in place and supersedes it to the extent required to allow payment of the sums the subject of this judgment.  Those persons, both the company and its directors and others, who give effect to the orders will be protected so long as they comply meticulously with it.

Solicitors:
Vallant Hooker & Partners for Appellants
Anthony Liew, Suckland for First Respondent