Ooi v Ting - [2016] NZHC 481

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1972 [2016] NZHC 481

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: On the papers

Counsel:

P M Webb for Plaintiff
D Zhang for Respondent

Judgment:

21 March 2016

JUDGMENT OF PALMER J

This judgment was delivered by me on 21 March 2016 at 4:45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Barrister/Solicitors: P M Webb, Denham Bramwell, Manukau
D Zhang, Barrister, Auckland
R Zhao, Auckand

OOI v TING [2016] NZHC 481 [21 March 2016]

Summary

[1] In October 2015 Ms Janet Ooi, the plaintiff, applied for formal proof of her claim against Mr George Ting, the defendant, for transfer of a property. In February
2016 the High Court agreed that she was entitled to proceed by way of formal proof but no hearing has yet been set and no supporting evidence filed. Mr Ting now seeks to defend the claim. I do not grant leave for him to file a Statement of Defence because there is no indication of whether there would otherwise be a miscarriage of justice or not. I do grant leave for Mr Ting to file submissions and evidence related to that and for Ms Ooi either to file her own submissions and evidence in response or to file evidence in support of her application for formal proof.

Facts

Proceedings and Service

[2] On 25 August 2015 Ms Ooi filed proceedings against Mr Ting for refusing to transfer his interest in a property to her, contrary to what she says is his duty as a trustee. She wants the property transferred to her.

[3] Service of the Statement of Claim was unable to be effected on Mr Ting who is 79 and lives in Brisbane, Australia. On 8 September 2015 Ms Ooi applied for, and was granted, an order that service may be effected by delivery to Sai Moey Yeoh in Auckland who was understood to be Mr Ting’s wife. This was effected on 15
September 2015.

[4] Mr Ting failed to file a Statement of Defence or to take any formal steps in the proceeding.

Application for formal proof

[5] On 27 October 2015 Ms Ooi filed with the High Court registry a memorandum requesting formal proof of her claim. Nothing happened.

[6] On 18 January 2016 Ms Ooi renewed her application with the court. On 15

February 2016, on receiving it from the registry as duty judge, Woodhouse J

apologised for the registry’s delay. He directed that Ms Ooi was entitled to proceed by way of formal proof and that her evidence was to be provided by affidavit. He noted it was in her interests to get the affidavit filed as soon as possible.

The Defendant responds

[7] On 19 February 2016 Mr Ting’s counsel, Mr Zhang, filed a memorandum of

counsel saying:

(a) Mr Ting was involved in a…

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 481
Case: [2016] NZHC 481
Decision Date: 21 March 2016

CaseChat Overview and Summary

The case of Ooi v Ting involves a dispute over the ownership of a property located at 71 De Havilland Drive, Goodwood Heights. Janet Kiang Ooi, the plaintiff, filed a claim against George Ting, the defendant, seeking a declaration of trust over the property and its transfer to her. The matter was initially heard on the papers, and the court granted Ooi leave to proceed by way of formal proof but did not set a date for the hearing or require supporting evidence. Ting, who resides in Australia, sought to defend the claim but was unable to file a Statement of Defence due to a traffic accident that rendered him unfit to work. The primary legal issue before the court was whether Ting should be granted leave to file a Statement of Defence despite the delay in filing it.

The court considered the factors relevant to granting leave to file a Statement of Defence under Rule 15.9(3) of the High Court Rules, which include whether there is a substantial ground of defence, whether the delay is reasonably explained, and whether the plaintiff will suffer irreparable injury if the defence is belatedly granted. The court found that Ting had provided a reasonable explanation for the delay due to his accident, but there was no substantive defence provided that could indicate a potential miscarriage of justice if judgment by default were entered. Additionally, the court noted that Ooi had not yet filed affidavit evidence in support of her claim for formal proof, and thus there was no clear prejudice to her if Ting were to be allowed to defend the claim.

The court decided not to grant leave for Ting to file a Statement of Defence at that time but reserved the option for him to renew the application. If Ting wished to renew his application, he was directed to file an application for leave to file a statement of defence, a draft of the Statement of Defence, submissions on leave, and any necessary affidavits by a specified deadline. If Ting met this deadline, Ooi would have an opportunity to file her own submissions and evidence in response. The court also set a deadline for Ooi to file her affidavit evidence supporting her application for formal proof if Ting did not meet the deadline. The court left the decision on costs to be determined in the context of the overall outcome of the litigation.

Orders