MA v Tay - [2014] NZCA 608

IN THE COURT OF APPEAL OF NEW ZEALAND

CA643/2013
[2014] NZCA 608

BETWEEN

TIAN MIN (MAGGIE) MA
Appellant

AND

TONY MENG HIANG TAY
First Respondent

SELINA SHAW NYUNG TAY
Second Respondent

JIREH HOTEL INVESTMENT LIMITED
Third Respondent

Hearing:	22 October 2014
Court:	Miller, Heath and Dobson JJ
Counsel:	P J Dale for Appellant No appearance by, or on behalf of, Respondents
Judgment:	11 December 2014 at 11.00 am

JUDGMENT OF THE COURT

AThe application under s 76(2) of the Insolvency Act 2006 to continue the appeal is granted.
BThe appeal is allowed, with the consequence that the order for costs made against Ms Ma in the High Court is set aside. No order as to costs on appeal.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

The appeal

Ms Ma has appealed against a judgment given by Ellis J in the High Court at Auckland on 4 September 2013.[1] Mr Dale, for Ms Ma, challenges the Judge’s decision to dismiss her claims for general damages against Mr Tay. Although Mr Tay, his wife and a company with which he is associated, were also named as respondents to the appeal, Ms Ma seeks to proceed only against Mr Tay. A subsequent judgment (on costs) delivered by Ellis J on 20 February 2014 is the subject of a separate appeal.[2]
[1]Ma v Tay [2013] NZHC 2292 [general damages decision].
[2]Ma v Tay [2014] NZHC 232 [costs decision].
The appeal was filed on 16 September 2013. Subsequently, both Mr and Mrs Tay were adjudged bankrupt. As a result, s 76 of the Insolvency Act 2006 (the Act) operated to “halt” the appeal.[3] Ms Ma seeks an order under s 76(2) of the Act to enable her to proceed with it.
[3]Set out below at [19].
The Official Assignee abides the decision of the Court, on behalf of Mr Tay’s estate. No appearance was entered on his behalf. Nor did anyone appear for the other respondents to the appeal.

Background

The background against which the present appeal falls to be considered is complex. Its origins lie in an application for summary judgment, made by Ms Ma against Mr Tay and others, based on an alleged guarantee or indemnity. Apart from the judgment under appeal (and the subsequent costs decision), no less than six judgments of the High Court have considered issues connected to the original claim.[4] The best exposition of background facts can be found in the judgment given by Associate Judge Gendall on Ms Ma’s application for summary judgment.[5] We gratefully acknowledge the clarity with which the Associate Judge expressed himself. In providing our own summary of relevant events, we have drawn extensively on his judgment.
[4]Ma v Tay [2012] NZHC 990 [summary judgment decision] (successful application by Ms Ma for summary judgment in the sum of $403,034.44, together with interest and costs): Ma v Tay [2012] NZHC 1387 (unsuccessful application by Mr Tay to recall the summary judgment order): Ma v Tay [2012] NZHC 2624 (judgment awarding costs…

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.

Continue reading MA v Tay

Details

AGLC: MA v Tay [2014] NZCA 608
Case: [2014] NZCA 608
Decision Date: 11 December 2014 at 11.00 am

CaseChat Overview and Summary

The case of Ma v Tay involved Tian Min (Maggie) Ma, the appellant, who filed an appeal against Tony Meng Hiang Tay, the first respondent, and others. The central dispute revolved around claims for general damages and costs that the appellant had made against the first respondent, which were dismissed by the High Court. The appeal was subsequently halted due to the first respondent's bankruptcy, necessitating an application under section 76(2) of the Insolvency Act 2006 to continue the proceedings. The core legal issues before the Court of Appeal were whether the appeal could proceed under the Act and if the High Court's dismissal of the distress damages claim was correct. The Court of Appeal granted the application to continue the appeal, finding that the circumstances warranted the continuation of the proceedings despite the respondent's bankruptcy. Regarding the distress damages claim, the Court held that the first respondent's conduct did establish a sufficient causal link to the appellant's distress, contrary to the High Court's ruling. Consequently, the Court of Appeal allowed the appeal and set aside the order for costs awarded against the appellant in the High Court, with no order for costs on appeal.

Orders