MA v Tay - [2014] NZHC 232

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-008215 [2014] NZHC 232

BETWEEN TIAN MIN (MAGGIE) MA Plaintiff

ANDTONY MENG HIANG TAY First Defendant

SELINA SHAW NYUNG TAY Second Defendant
JIREH HOTEL INVESTMENT LIMITED Third Defendant

Hearing: On the papers

Appearances: P J Dale for Plaintiff
M Corlett and A M Swan for Defendants

Judgment: 20 February 2014

COSTS JUDGMENT OF ELLIS J

This judgment was delivered by me on Thursday 20 February 2014 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:
P J Dale, Barrister, Auckland
M Corlett, Barrister, Auckland
A M Swan, Barrister, Auckland

MA v TAY [2014] NZHC 232 [20 February 2014]

[1] I regret the delay in dealing with the matters raised in the parties’ respective costs memoranda which, for some reason, were not referred to me until some time after they were filed.

[2] The specific issue presently for determination is whether or not, following my substantive judgment dated 4 September 20131 declining Ms Ma’s claims for general damages, the first to fifth defendants are entitled to an award of either indemnity or increased costs. This judgment needs to be read in conjunction with that earlier judgment.

Background

[3] These proceedings have a somewhat long and complex history and it is necessary briefly to refer to aspects of it.

[4] Broadly speaking, Ms Ma, together with Mr Tay and his associated interests were involved in an arrangement for the purchase, development and establishment of a medical and wellness facility at Lake Karapiro. As part of that venture, Mr Tay arranged for Ms Ma to purchase one of the units at the Karapiro property and for bank mortgage finance to be provided to fund the purchase.

[5] Settlement of the unit purchase occurred. Thereafter, for a time, mortgage payments were made by one of Mr Tay’s companies via rental payments for the unit under an agreed tenancy. Then, as a result of that company’s financial difficulties, the flow of rental money ceased and the mortgage fell into default. As a result, the mortgagee, Westpac Bank, obtained judgment against the defaulting mortgagor Ms Ma for some $403,034.44 plus interest.

[6] A dispute over responsibility for the mortgage default and the Westpac judgment then developed between the Ma interests and the Tay interests. A series of meetings to settle that dispute took place. As a result, two documents were signed by Mr Tay effectively accepting liability for the Westpac loan and agreeing fully to
indemnify Ms Ma for the judgment debt. But Ms Ma was required to bring

1 Ma v Tay [2013] NZHC 2292.

summary judgment proceedings to enforce those agreements and summary judgment was awarded in her favour by Associate Judge Gendall (as he then was) on 16 May
2012. It may be noted that Ms Ma was subsequently awarded a 50 per cent increase on the standard 2B costs in relation to that application.

[7] In his decision on the summary judgment application, however, Judge…

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] NZHC 232
Case: [2014] NZHC 232
Decision Date: 20 February 2014

CaseChat Overview and Summary

In the case of MA v TAY, the High Court of New Zealand was called upon to determine whether the defendants were entitled to indemnity or increased costs following the plaintiff's unsuccessful claims for general damages. The plaintiff, Tian Min (Maggie) MA, had previously sought damages against the first defendant, Tony Meng Hiang Tay, and others, arising from a complex dispute involving the purchase, development, and establishment of a medical and wellness facility at Lake Karapiro. Despite a summary judgment awarded in her favour on certain claims, the court declined to award general damages due to insufficient evidence of actual harm and distress. The defendants subsequently sought indemnity or increased costs based on the plaintiff's alleged vexatious, frivolous, or unreasonable conduct in pursuing the general damages claims and her refusal to accept a settlement offer.

The court examined the grounds for indemnity costs, including improperly particularised or pleaded allegations of fraud and dishonesty, as well as the plaintiff's refusal to accept a reasonable settlement offer. The court found that the allegations of dishonesty and fraud in the third and fifth causes of action were not properly pleaded or supported by the evidence. Although the general damages claim in the first cause of action was not entirely baseless, it was on a legal basis that was not well-established. The court also noted that the plaintiff's refusal to accept a settlement offer of $20,000 was unreasonable, and the threat to refer the defendants to the Serious Fraud Office did not assist her position. The court found that the issue of indemnity costs was finely balanced, but ultimately decided not to require the plaintiff to pay them. However, the court concluded that an award of increased costs was justified due to the plaintiff's failure to act reasonably in pursuing the general damages claims and her unreasonable refusal to settle the matter. The court found that a 50% uplift on the standard 2B costs was warranted, resulting in the plaintiff being ordered to pay the defendants' costs in the sum of $43,282.50.

Orders