MA v Tay - [2012] NZHC 2624

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-8215 [2012] NZHC 2624

BETWEEN TIAN MIN (MAGGIE) MA Plaintiff
ANDTONY MENG HIANG TAY First Defendant
ANDSELINA SIAW NYUNG TAY Second Defendant
ANDJIREH HOTEL INVESTMENT LIMITED Third Defendant
ANDTONY TAY TRUST LIMITED AS TRUSTEE FOR THE TONY TAY TRUST Defendant
ANDTONY MEING HIANG TAY AND SELINA NYUNG TAY AND RONALD EDWARD CHERRY AS TRUSTEES OF THE ELSHADAI FAMILY TRUST
Fifth Defendant

ANDROSGO FINANCIAL SERVICES LIMITED
Sixth Defendant

ANDROSHNI GOLIAN Seventh Defendant

Hearing: On Papers
Memoranda of Plaintiff - 31 July 2012 and 7 September 2012
Memorandum of First to Fourth Defendants - 4 September 2012

Judgment: 10 October 2012

Reasons: 10 October 2012

REASONS FOR DECISION OF ASSOCIATE JUDGE D.I. GENDALL

Under r 11.5 of the High Court Rules I direct the Registrar to deliver this Reasons for Decision at 3.00 pm on 10 October 2012.

Solicitors: Ross Holmes, Lawyers, PO Box 33009, Takapuna (juliax@rossholmes.co.nz) Jeffrey Ng, Solicitors, PO Box 36-26, Northcote, North Shore City 0748 (jeffrey@jeffreynglaw.co.nz)
pauldale@45chancery.co.nz and andrewswan@xtra.co.nz

TIAN MIN (MAGGIE) MA V TMH TAY HC AK CIV-2011-404-8215 [10 October 2012]

Introduction

[1] On 4 October 2012 I gave judgment in this proceeding in favour of the plaintiff against the first, second, third and fourth defendants as to costs and disbursements first, with respect to the plaintiff’s successful summary judgment application and secondly, on her successful opposition to an application by the defendants in question to recall that judgment.

[2] The costs awarded to the plaintiff for the summary judgment application itself were calculated on a category 2B basis with a 50% uplift. They totalled
$14,100.00. In addition, an award of disbursements totalling $1,329.90 was made. Those costs and disbursements clearly related only to the summary judgment application.

[3] As to the defendants’ unsuccessful application to recall that judgment, the 4

October 2012 costs judgment on that application awarded an additional $1,128.00 in costs to the plaintiff, the amount sought.

[4] In giving that 4 October 2012 judgment, I indicated that my reasons for the decision would follow. I now set out those reasons.

Background

[5] The plaintiff Tian Min (Maggie) Ma (Ms Ma) and the first defendant, Tony Meng Hiang Tay (Mr Tay) and his associated interests were involved broadly in an arrangement for the purchase, development and establishment of a medical and wellness facility at Lake Karapiro in the Waikato. As part of that process, Mr Tay arranged first, for Ms Ma to purchase one of the units at the Karapiro property and secondly, for bank mortgage finance to be provided to fund part of the purchase.

[6] Settlement of the unit purchase occurred (although surprisingly only the net bank mortgage amount was paid at the time to Mr Tay’s interests as vendors). Thereafter, for a time, mortgage payments were made by a Tay company via rental payments for the unit under an agreed tenancy. Then, as a result of that company stopping the flow of rental money under the tenancy, the mortgage fell into default. As…

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 [2012] NZHC 2624
Case: [2012] NZHC 2624
Decision Date: 10 October 2012

CaseChat Overview and Summary

In the case of Tian Min (Maggie) Ma v Tony Meng Hiang Tay and others, the High Court of New Zealand considered the issue of costs following a successful summary judgment application by the plaintiff against several defendants. The central dispute involved a series of agreements related to the purchase and financing of a property at Lake Karapiro. The plaintiff sought indemnity costs or an uplift on scale costs for the summary judgment application and the opposition to an unsuccessful application to recall that judgment.

The court found that while the defendants' conduct in defending the summary judgment application was unreasonable, it did not reach the level of vexatiousness required for indemnity costs. However, the court did find that the defendants' defense was entirely unmeritorious and unnecessarily prolonged the proceedings, justifying a 50% uplift on the scale costs. The court awarded the plaintiff costs on a category 2B basis with a 50% uplift, amounting to $14,100.00, along with disbursements of $1,329.90. Additionally, the plaintiff was awarded $1,128.00 in costs for opposing the defendants’ unsuccessful application to recall the summary judgment. The court also awarded costs for the costs application itself on a category 2B basis.

Orders