Ooi v Ting - [2016] NZHC 952

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1972 [2016] NZHC 952

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

De Havilland Drive, Goodwood Heights

BETWEEN

JANET KIANG OOI Plaintiff

AND

GEORGE TING Defendant

Hearing: 11 May 2016

Counsel:

PM Webb for plaintiff
MJW Lenihan for defendant

Judgment:

11 May 2016

JUDGMENT OF FAIRE J

This judgment was delivered by me on 11 May 2016 at 5 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Denham Bramwell, Auckland
Simpsons Lawyers, Auckland

Ooi v Ting [2016] NZHC 952 [11 May 2016]

Introduction

[1] The plaintiff seeks orders that the defendant’s refusal to sign documents to effect a transfer of a property at 71 De Havilland Drive, Goodwood Heights, Manukau described as Lot 13, Deposited Plan 184174 on CT NA115A/431 is a breach of a declaration trust made by the defendant on 17 June 2010.

[2] In addition, the plaintiff seeks directions designed to give effect to carrying into force the declaration of trust.

Background

[3] The background is set out in the judgment delivered by Palmer J on 21 March

2016. I adopt his Honour’s summary and therefore do not repeat it.

The formal proof listing and the application for leave to defend

[4] Following Palmer J’s judgment, the solicitors who had acted for the

defendant sought, and were granted leave to withdraw on 19 April 2016. [5] On 27 April 2016, Fogarty J recorded subsequent events. He:
(a) Noted that no application for leave to defend had been filed by the defendant. Palmer J had directed that an application was required if the defendant sought leave to defend; and

(b) Directed that the case be set down for formal proof. [6] The Registry listed the proceeding for formal proof today.

Preparation for the formal proof hearing

[7] In preparation for the formal proof hearing the plaintiff has sworn and filed an affidavit in support. Her counsel has filed a memorandum in support of the request for entry of judgment.

[8] On 5 May 2016, an affidavit by the defendant and a statement of defence was lodged with the court. Those documents put in issue:

(a) The plaintiff’s claim that she provided all the funds for the purchase and retention, including payment of mortgage, of the subject property; and

(b)That the declaration of trust relied upon by the plaintiff was a document executed by the defendant under a mistake as to its effect, ie, essentially he relied on the plea of non est factum.

The hearing

[9] I expressed to counsel my concern as to whether there was sufficient material before the court to enable it to deal with the formal proof hearing. I do not specifically criticise the plaintiff for this, because the situation has come about because of material that has been placed before the court in an unsatisfactory way by the defendant.

[10] The defendant’s position, as I have said, has been unsatisfactory throughout. The position has…

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 952
Case: [2016] NZHC 952
Decision Date: 11 May 2016

CaseChat Overview and Summary

In the case of Ooi v Ting, the plaintiff sought a declaration of trust over property at 71 De Havilland Drive, Goodwood Heights, Manukau, which was initially purchased in joint names. The defendant, George Ting, was alleged to have signed a declaration of trust on 17 June 2010, stating that the property was intended solely for the plaintiff's benefit. The plaintiff, Janet Kiang Ooi, sought an order that the defendant's refusal to sign documents to effect a transfer of the property was a breach of the declaration of trust. Additionally, she sought directions to enforce the declaration of trust. The defendant, in turn, lodged a statement of defence claiming that he signed the declaration of trust under a mistake as to its effect, and that he did not make any financial contributions towards the purchase or retention of the property.

The court considered the application for leave to defend under Rule 15.9(3) of the High Court Rules, which requires the court to determine whether there will or may be a miscarriage of justice if judgment by default is entered. The court found that the defendant's non est factum plea raised a substantial ground of defence, and that it was just in the circumstances to grant leave to defend. However, due to the defendant's previous defaults, the court decided to impose strict conditions on the leave to defend, including the payment of indemnity costs and a warning that failure to comply with the terms would result in judgment being entered against the defendant.

The court further directed the parties to comply with their initial disclosure obligations and set the trial for 17 October 2016, allocating three days for the trial. The court also reserved the issue of the quantum of indemnity costs until further memoranda from counsel were received.

Orders