Ma v Tay - [2012] NZHC 990

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-8215 [2012] NZHC 990

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, 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

Hearing: 7 May 2012

Counsel: P Dale and J Xu for plaintiff
A M Swan for first, second, third, fourth and fifth defendants

Judgment: 16 May 2012

RESERVED JUDGMENT OF ASSOCIATE JUDGE D I GENDALL

This judgment of Associate Judge Gendall was delivered by me on 16 May 2012 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Ross Holmes, PO Box 33009, Takapuna, Auckland 0740 (juliax@rossholmes.co.nz) for plaintiff
Jeffrey Ng, PO Box 36026, Northcote, North Shore City 0748 (jeffrey@jeffreynglaw.co.nz) for first to fifth defendants

TM (MAGGIE) MA V TMH TAY & ORS HC AK CIV-2011-404-8215 [16 May 2012]

Introduction

[1] The plaintiff, Tian Min (Maggie) Ma (Ms Ma) applies for summary judgment against the first, second, third, fourth and fifth defendants (collectively called the affected defendants) in this proceeding. The application is opposed by the affected defendants.

[2] As a preliminary matter, before me counsel for Ms Ma acknowledged that the present application sought summary judgment only against the affected defendants. As I understand the position, confirmation of service of the proceeding on the sixth and seventh defendants has yet to be provided. The current application before me did not seek summary judgment against the sixth or seventh defendants.

[3] The present application effectively seeks summary judgment against the affected defendants for the sum of $403,034.44, together with additional interest, an amount for general damages and costs. The amounts in question relate to a default which Ms Ma has made on a loan and mortgage to Westpac Bank Limited (Westpac) for which Westpac has obtained judgment against her in this Court for the sum of
$403,034.44 and continuing interest. Ms Ma contends that the affected defendants are liable to her for this debt for reasons I will outline later in this judgment.

Preliminary matter

[4] Before me a preliminary matter arose which I dealt with at the hearing of this matter. On 1 May 2012, Ms Ma endeavoured to file a second affidavit in reply for this proceeding.

[5] Counsel for the affected defendants objected to this and opposed the affidavit being read or taken into account on the present application. This was, according to counsel, on the basis that the affected defendants had had no opportunity to reply in the time available, that the affidavit was filed far too late and therefore it should not be read. In addition, the affected defendants’ position was that the affidavit raised new matters on which they should have the opportunity to reply.

[6] Counsel…

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 990
Case: [2012] NZHC 990
Decision Date: 16 May 2012

CaseChat Overview and Summary

Tian Min (Maggie) Ma applied for summary judgment against Tony Meng Hiang Tay and other defendants in this proceeding. The application was opposed by the affected defendants. The application effectively sought summary judgment against the affected defendants for the sum of $403,034.44, together with additional interest, an amount for general damages and costs. The amounts in question related to a default which Ms Ma had made on a loan and mortgage to Westpac Bank Limited (Westpac) for which Westpac had obtained judgment against her in this Court for the sum of $403,034.44 and continuing interest. Ms Ma contended that the affected defendants were liable to her for this debt for reasons she would outline later in this judgment.

The application for summary judgment succeeded against the first, second, third and fourth defendants. It failed with respect to the fifth defendants and was hereby dismissed. Summary judgment was to be granted against the first, second, third and fourth defendants in terms of the plaintiff’s basic claim for $403,034.44 representing the Westpac judgment against her together with interest as particularised in that judgment. The plaintiff’s claim for general damages by way of summary judgment was dismissed. Costs were reserved. The Registrar was directed to arrange a directions telephone conference of all parties at the first available opportunity to address these matters.

Orders