Ma v Tay - [2013] NZHC 2292

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-008215 [2013] NZHC 2292

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: 27, 28 May and 26, 27 June 2013

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

Judgment: 4 September 2013

JUDGMENT OF ELLIS J

This judgment was delivered by Justice Ellis on 4 September 2013 at 1.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………

MA v TAY [2013] NZHC 2292 [4 September 2013]

[1] On 15 September 2011 Associate Judge Bell entered judgment against the plaintiff, Ms Ma, in favour of Westpac New Zealand Ltd (Westpac) in relation to defaults by Ms Ma under a mortgage she had with the bank. The judgment sum was
$403,034.44 together with interest which continues to accrue.

[2] On 16 May 2012 Associate Judge Gendall (as he then was) granted Ms Ma summary judgment against (inter alia) the first defendant Mr Tay on the basis that he had agreed to indemnify her in relation to her liability to Westpac.1

[3] The Westpac judgment has still not been met by Mr Tay. An appeal from the learned Associate Judge’s decision is pending and Mr Tay has also sought, unsuccessfully thus far, to re-litigate his liability in separate proceedings. His claim in that respect was struck out by Woolford J on 25 March 2013. An appeal against that judgment has also been filed.

[4] As I have said, Associate Judge Gendall entered summary judgment against Mr Tay in the amount of Ms Ma’s mortgage debt to Westpac. But he declined to determine Ms Ma’s further claims against him for general damages for the emotional distress and reputational harm that she says she has suffered. It is those claims to which this judgment relates.

Facts

[5] Although the factual background to these proceedings is set out in some detail in Associate Judge Gendall’s decision, it is convenient to summarise it again here. I record my apologies in advance to the learned Judge for any plagiarism (either accidental or shameless).

[6] Ms Ma is a qualified doctor. She has lived in New Zealand for over 10 years and has a good command of English. Mr Tay was an elder in the church she attends.

[7] At the time material to these proceedings Mr Tay owned and controlled a number of companies which were together called the Tony Tay Group. These

1 Ma v Tay [2012] NZHC 990. Summary judgment was entered against Mr Tay and the second, third and fourth defendants.

companies engaged in many residential and commercial property development projects and other businesses.

[8] In 2006, it seems that Mr Tay encouraged Ms Ma and her father (who is a neurologist) to be involved in wellness centres he was establishing in New Zealand. To that end, in early 2007 Ms Ma and Mr Tay…

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 [2013] NZHC 2292
Case: [2013] NZHC 2292
Decision Date: 4 September 2013

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Ma v Tay involved Tian Min (Maggie) Ma suing Tony Meng Hiang Tay, Selina Shaw Nung Tay, and Jireh Hotel Investment Limited for general damages related to emotional distress and reputational harm she claimed to have suffered due to her involvement in a property transaction and subsequent financial liabilities. The court was tasked with determining whether Tony Tay's breach of an indemnity agreement, as well as alleged fraudulent and conspiratorial actions, warranted general damages for Ma. The court assessed whether the distress and reputational harm were sufficiently linked to Tony Tay's actions or if they primarily stemmed from Ma's own decisions and Westpac's judgment against her.

Justice Ellis concluded that the primary cause of Ma's distress was her signing of significant documents without understanding their implications and Westpac's subsequent judgment against her, rather than Tony Tay's breach of the indemnity agreement. The court found that the claims for general damages under the first cause of action failed due to the lack of causation. For the third cause of action, the court held that there was no independent cause of action in fraud and that the allegations did not establish dishonesty or wrongdoing by Tony Tay. The fifth cause of action, concerning conspiracy, was also dismissed as there was no evidence of an unlawful purpose or unlawful means intended to harm Ma.

Ultimately, the court dismissed all claims for general damages, emphasizing that Ma's pleadings regarding fraud and dishonesty were inadequate. The court reserved the decision on costs, acknowledging the ongoing financial obligations stemming from the Westpac judgment.

Orders