Ma v Tay - [2013] NZHC 573

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-008215 [2013] NZHC 573

BETWEEN TIAN MIN (MAGGIE) MA Plaintiff

ANDTONY MENG HIANG TAY & ORS Defendant

CIV 2012-404-003751 [2013] NZHC 573

BETWEEN TONY MENG HIANG TAY & ORS Plaintiff

ANDTIAN MIN (MAGGIE) MA Defendant

Hearing: 27 February 2013

Appearances: P Dale for Ms Ma
A Swan for Mr Tay & Ors

Judgment: 25 March 2013

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Monday, 25 March 2013 at 3:15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

P Dale, Barrister, Chancery Street Chambers, PO Box 130, Shortland Street, Auckland. A M Swan, Barrister, PO Box 5444, Wellesley Street, Auckland

MA V TAY & ORS HC AK CIV 2011-404-008215 [25 March 2013]

[1] Tian Min (Maggie) Ma and Tony Meng Hiang Tay are former business partners who have had a falling out.

[2] In CIV 2011-404-008215, Associate Judge Gendall gave summary judgment in favour of Ms Ma against Mr Tay, his wife, and two associated companies in the sum of $403,034.44 plus interest on the basis, inter alia, of an acknowledgement made by Mr Tay in a document dated 13 October 2011 that responsibility for a
mortgage over a property owned by Ms Ma in Karapiro would be transferred to

him.1

Related claims in the same proceeding of fraud on the part of Mr Tay in

relation to the execution of the mortgage, together with a claim for general damages, have been set down for three day hearing commencing 27 May 2013.

[3] Mr Tay now makes application for an order directing that Ms Ma provide

interim security for costs in the sum of $25,000 in respect of the hearing in May.

[4] In CIV 2012-404-003751, proceedings filed six weeks after Associate Judge

Gendall’s judgment in CIV 2011-404-008215, Mr Tay claims the sum of

$442,810.72 from Ms Ma on the basis that she is indebted to him for that amount in relation to the disproportionate injection of capital into two companies which were formed as part of an oral joint venture agreement between them.

[5] Ms Ma now makes application for an order striking out Mr Tay’s claim or, alternatively, for summary judgment.

CIV 2011-404-008215 – Application by Mr Tay for security for costs

[6] The facts surrounding this proceeding are set out in Associate Judge Gendall’s judgment of 16 May 2012 at [8] – [65]. In the judgment, Associate Judge Gendall ordered Mr Tay to pay Ms Ma the sum of $403,034.44, which equated to a judgment which had been obtained by the Westpac Bank against Ms Ma on
15 September 2011, following default by her in her obligations to Westpac. Mr Tay

1 Ma v Tay [2012] NZHC 990.

took steps to have the judgment of Associate Judge Gendall recalled. He was unsuccessful. He then appealed against the judgment but later abandoned it. In October 2012, Mr Tay paid Westpac approximately $450,000 in satisfaction of Ms Ma’s liability to…

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 573
Case: [2013] NZHC 573
Decision Date: 25 March 2013

CaseChat Overview and Summary

Tian Min (Maggie) Ma and Tony Meng Hiang Tay were former business partners who had a falling out. The proceedings before the Court are the latest in a series of actions between the parties. In the first proceeding, CIV 2011-404-008215, Associate Judge Gendall granted summary judgment in favour of Ms Ma against Mr Tay and others for the sum of $403,034.44 plus interest. The sum was equivalent to a judgment obtained by Westpac Bank against Ms Ma for default in her obligations to Westpac. Mr Tay took steps to have the judgment of Associate Judge Gendall recalled but was unsuccessful. He subsequently abandoned an appeal against the judgment. In the present proceeding, CIV 2012-404-003751, Mr Tay claims the sum of $442,810.72 from Ms Ma on the basis that she is indebted to him in relation to the disproportionate injection of capital into two companies which were formed as part of an oral joint venture agreement between them. In the first proceeding, Mr Tay had alleged that the 13 October 2011 agreement, upon which he now relies, was procured by undue influence and/or duress and therefore unenforceable. Ms Ma now makes application to strike out Mr Tay’s claim or, alternatively, for summary judgment. The Court dismissed Mr Tay’s application for security for costs in CIV 2011-404-008215. The Court also struck out Mr Tay’s claim in CIV 2012-404-003751 on the basis that it raises an issue that could have been and should have been raised in Ms Ma’s claim in CIV 2011-404-008215. Mr Tay’s contradictory evidence is a manifestation of the difficulties which arise if the wider doctrine of res judicata is not applied in the present case. If it had been necessary, the Court would have declined both Ms Ma’s application to have Mr Tay’s claim struck out on the ground of prematurity and her application for summary judgment.

Orders