Ooi v Ting - [2016] NZHC 2583

IN THE HIGH COURT OF NEW ZEALAND AUCKALND REGISTRY

CIV-2015-404-001972 [2016] NZHC 2583

IN THE MATTER OF
a declaration of trust over property at 71

De Havilland Drive, Goodwood Heights

BETWEEN

JANET OOI Plaintiff

AND

GEORGE TING Defendant

Hearing: 17 October 2016

Appearances:

P M Webb for Plaintiff
No appearance for or by Defendant

Judgment:

28 October 2016

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty
On 28 October 2016 at 1.00pm Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Denham Bramwell, Manukau/P M Webb, Auckland
Copy to Defendant

OOI v TING [2016] NZHC 2583 [28 October 2016]

[1] This is a claim by the plaintiff for an order of this Court seeking a vesting order being a direction to the Registrar of Land to sign documents to effect the transfer of the defendant’s registered interest in this property to the plaintiff.

[2] The case proceeds today by way of formal proof, pursuant to the Minute of

Courtney J dated 21 September 2016. That minute records in paragraph [4]:

Finally, I record that this matter is to proceed as a formal proof hearing on 17
October 2016. Prior to that date the plaintiff’s counsel will file and serve submissions in accordance with the current timetable. Mr Ting is to be served with a copy of this minute. He should understand that this matter will proceed on 17 October 2016 whether he is present or not. I note, further, that, given his history of non-compliance, no further adjournment should be granted even if he arranges fresh representation.

[3] It is not necessary to detail the history of non-compliance. In brief, Mr Ting has had many opportunities to defend these proceedings. He has employed solicitors. They have obtained leave to withdraw. His essential argument is that he did not understand the Declaration of Trust that he signed. The trust is in English. He says that it was not explained to him in the Chinese language of Cantonese and he does not understand Mandarin. On 21 September 2016, his solicitor, Mr Tong and counsel advised the Court they had no instructions. Mr Tong applied for leave to withdraw as solicitor on the record and leave was granted.

[4] The case being called and there being no appearance of Mr Ting, the hearing then proceeded as a formal proof. Mr Webb, appearing for the plaintiff, took the Court through his written submissions dated 10 October 2016 and the proceedings were recorded.

[5] The plaintiff, Ms Ooi, is the registered proprietor together with the defendant, of the property at 71 De Havilland Drive, Goodwood Heights, Auckland, being Lot
13, DP 184174 (“the property”). The defendant, Mr George Ting, is Ms Ooi’s former employer and long term de facto partner. Mr Ting’s occupation is as a third tier financer and property developer.

[6] The property was conveyed into the joint names of the plaintiff and the defendant on 4 July 2001. The plaintiff ’s case is that the…

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 Ooi v Ting

Details

AGLC: Ooi v Ting [2016] NZHC 2583
Case: [2016] NZHC 2583
Decision Date: 28 October 2016

CaseChat Overview and Summary

The case of Ooi v Ting [2016] NZHC 2583 involves a claim by Janet Ooi against George Ting for an order to vest the defendant’s interest in a property at 71 De Havilland Drive, Goodwood Heights, in the plaintiff. The property was originally purchased in 2001 in both names as a joint venture, but the plaintiff claims it was intended solely for her benefit. In 2010, a Declaration of Trust was executed, which the plaintiff argues confirms that the defendant held the property on trust for her sole benefit. The defendant, however, has persistently failed to comply with court orders and has not appeared in court to defend the claim. The primary legal issue before the court was whether the plaintiff was entitled to a vesting order based on the Declaration of Trust, despite the defendant’s non-compliance and absence.

The court found that the Declaration of Trust was valid and binding on the defendant, as he had signed it and had not provided a credible defence to the claim. Given the defendant's history of non-compliance and absence from the proceedings, the court ruled that there was no legal basis to consider the defendant’s statement of defence. The court referenced the precedent set in Kimber v Carver, where a similar vesting order was granted based on the terms of a Declaration of Trust. Consequently, the court granted the plaintiff’s request for a vesting order, transferring the defendant's interest in the property to the plaintiff, and ordered the Registrar of Land to execute the necessary documents. Additionally, the court awarded indemnity costs against the defendant for his persistent non-compliance and breach of court directions.

Orders