MA v Tay - [2012] NZHC 1387

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-8215 [2012] NZHC 1387

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 Fourth Defendant

ANDTONY MENG HIANG TAY AND SELINA NYUNG TAY AND RONALD WILLIAM EDWARD CHERRY AS TRUSTEES OF THE ELSHADAI FAMILY TRUST
Fifth Defendants

ANDROSGO FINANCIAL SERVICES LIMITED
Sixth Defendant

ANDROSHNI GOLIAN Seventh Defendant

Decision: 20 June 2012

DECISION OF ASSOCIATE JUDGE D.I. GENDALL

This decision of Associate Judge Gendall was delivered by the Registrar on 20 June
2012 at 11.00 am under r 11.5 of the High Court Rules.

Solicitors: Ross Holmes Lawyers, PO Box 33009, Takapuna, Auckland 0740
Jeffrey Ng, PO Box 36026, Northcote, North Shore City

TM (MAGGIE) MA V TMH TAY HC AK CIV-2011-404-8215 [20 June 2012]

[1] On 16 May 2012 I gave judgment in this matter granting the plaintiff’s summary judgment application which was before the Court against the first, second, third and fourth defendants but refusing summary judgment against the fifth defendant.

[2] Subsequently on 13 June 2012 the first, second, third and fourth defendants filed an application to recall this judgment together with supporting affidavits.

[3] That application was opposed by the plaintiff in a Notice of Opposition filed

15 June 2012.

[4] That opposed application together with supporting material has now been referred to me for decision. I now give that decision.

[5] The grounds set out in the Application for Recall filed by the first, second, third and fourth defendants are set out at para 2 of their application as follows:

2. The grounds on which each order is sought are as follows:

(i) Judgment was entered against defendants on 16 May 2012 in the sum of $403,034.44;

(ii) Judgment was entered “taking into account” [89] an undisputed transcript prepared by the plaintiff from recordings taken (by the plaintiff) of two meetings held between the parties in September
2011 (“the transcript”);

(iii) A copy of the CD-ROM recording those meetings was provided to the defendants’ on 11th April 2012 (just over 3 weeks prior to the hearing);

(iv) The defendants’ were provided insufficient time before the hearing
to scrutinise the translation;

(v) The defendants’ have now had the opportunity to have the CD- ROMs translated and have discovered that:

(a) The transcript is not accurate;

(b) Prior to the filing of the plaintiff ’s affidavit in support of the summary judgment (19th December 2011) and following that date (but prior to the CD-ROM being provided to the defendants) the CD-ROM has been modified.

(vi) In the circumstances there are special reasons for the judgment to be recalled as there has been a discovery of new facts;

(vii) There are exceptional circumstances why the judgment should be reopened and it is in the interests of justice that it should be.

[6] An Application to Recall a Judgment is made under r 11.9 High…

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 1387
Case: [2012] NZHC 1387
Decision Date: 20 June 2012

CaseChat Overview and Summary

In the case of Tian Min (Maggie) Ma versus Tony Meng Hiang Tay and others, the plaintiff sought summary judgment against multiple defendants in a dispute over a property transaction. The High Court of New Zealand Auckland Registry presided over the case, and the matter reached Associate Judge D.I. Gendall. The defendants subsequently filed an application to recall the summary judgment granted to the plaintiff, arguing that they had insufficient time to scrutinize a translated transcript provided by the plaintiff, and that the transcript was inaccurate and had been modified.

The court considered the criteria for recalling a judgment, as outlined in Horowhenua County v Nash, which include amendments to relevant statutes, failure to present relevant legislative provisions or decisions, or other special reasons. The Court of Appeal's guidelines in Erwood v Maxted also influenced the decision, distinguishing between correction of errors and applications for recall. The court noted that the transcript evidence had not been challenged by the defendants and had been used as part of the overall evidence in the case.

Associate Judge D.I. Gendall concluded that this was not an appropriate case for recalling the judgment. The court held that if the defendants were dissatisfied with the judgment, they should pursue an appeal or a rehearing on the basis of new evidence. The judge dismissed the application for recall, finding that there were no "very special reasons" under the criteria set forth in Horowhenua County that would necessitate recalling the judgment.

Orders