Ma v Ming Shan Holdings Ltd - [2010] NZCA 325

IN THE COURT OF APPEAL OF NEW ZEALAND
CA53/2010
[2010] NZCA 325
BETWEENTAI YUAN MA, SHUJUAN ZHANG AND YING MA (ALSO KNOWN AS LINDA MA)

Appellants

ANDMING SHAN HOLDINGS LIMITED

Respondent

Hearing:23 June 2010

Court:Glazebrook, Heath and Allan JJ
Counsel:A D Banbrook for Appellants

J G Ussher for Respondent

Judgment:28 July 2010 at 4.00 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.
BFor the reasons set out at [63] and [73], the orders made by the High Court are set aside and substituted with the following:
(a)A declaration that the property at 15 Claremont Way, Howick is held by Ying Ma and Shujuan Zhang on trust for Ming Shan Holdings Ltd.
(b)An order requiring Ying Ma and Shujuan Zhang to transfer the property at 15 Claremont Way, Howick to Ming Shan Holdings Ltd, subject to the existing mortgage in favour of the Bank of New Zealand.
(c)Leave is reserved for Ming Shan Holdings Ltd to apply to the High Court to seek any further order or direction that may be required to give effect to these orders.

CCosts are awarded in favour of Ming Shan Holdings Ltd against the appellants on a joint and several basis. Those costs are fixed at a Band A basis for a standard appeal, with an uplift of 50 per cent, plus usual disbursements.

____________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
The appeal
[1]        Tai Yua Ma (Mr Ma), Shujuan Zhang (Ms Zhang) and Ying Ma (Linda) appeal against a judgment of Associate Judge Robinson, delivered in the High Court at Auckland on 18 December 2009, by which Ming Shan Holdings Ltd (Ming Shan) obtained a declaration that a house property in Auckland was held on trust for it.
Introduction
[2]        Mr Ma and Ms Zhang are husband and wife. Linda is their daughter. Ming Shan is a company owned and operated by Mr Ma’s brother, Weinan Ma (Weinan).
[3]        In 1999 and 2000, Weinan was detained by Chinese authorities on charges that were subsequently withdrawn. Mr Ma was asked to control Ming Shan’s affairs. During that time, Mr Ma acknowledges having stolen the sum of $1,421,312.01 from Ming Shan. Of that sum, $40,000 found its way into Linda’s hands and was used to pay a deposit on the purchase of a property at 15 Claremont Way, Howick, Auckland.
[4]        On 19 December 2005, Ming Shan obtained judgment on admissions against Mr Ma and Ms Zhang in the sum of $1,421,312.01. At the same time, judgment was entered against Linda in the sum of $40,000.[1] Execution of that judgment was stayed pending determination of a counterclaim brought by Mr Ma and Mr Zhang against Weinan, in which judgment was sought in the sum of $5,630,000.
[1]Ming Shan Holdings Ltd v Ma and Zhang HC Auckland CIV-2000-404-1597, 31 July 2008 at [16].
[5]        After a lengthy hearing before Lang J, the counterclaim was dismissed. Lang J took the view that the claim was fictitious.[2] Prior to delivery of judgment in those…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NZCA 325
Decision Date: 28 July 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Tai Yuan Ma, Shujuan Zhang, and Ying Ma (also known as Linda Ma) appealed against a judgment of Associate Judge Robinson, delivered in the High Court at Auckland on 18 December 2009. The appeal centred on a property at 15 Claremont Way, Howick, which Ming Shan Holdings Ltd (Ming Shan) claimed was held on trust for it. The appellants argued that the Associate Judge erred in entering summary judgment and that the delay in issuing the proceeding ought to have led him to decline to exercise his discretion to enter summary judgment. The appeal was dismissed, with the orders made by the Associate Judge being set aside and replaced with new orders. The Court of Appeal found that there was no arguable defence to Ming Shan's claim that the property was held on trust for it. Costs on the appeal were awarded in favour of Ming Shan against the appellants, on a joint and several basis, at a Band A basis for a standard appeal, with an uplift of 50 per cent, plus usual disbursements.

Orders