So v Shi

Case [2022] NZHC 214 18 February 2022

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000926

[2022] NZHC 214

BETWEEN
BIU TAO SO

Plaintiff

AND

YAN SHI

First Defendant

HIN SING SO

Second Defendant

Hearing: 8 September 2021

Appearances:

C P Browne and C J L Martin for Plaintiff

K G Davenport QC and A E Isaacs for First Defendant No appearance by or on behalf of the Second Defendant

Judgment:

18 February 2022

Reissued:

11 May 2022

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 18 February 2022 at 12pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Wilson Harle, Auckland Corban Revell, Auckland

SO v SHI [2022] NZHC 214 [18 February 2022]

Introduction

[1] Biu Tao So (the plaintiff) applies for the entry of summary judgment against Yan Shi (known as “Maggie”) who is his daughter-in-law (the first defendant), and also against Hin Sing So (known as “Esmond”) who is his son (the second defendant).

[2] The plaintiff claims to be the beneficial owner of a two-thirds interest in an investment property situated at 3/27 Victoria Street West in Auckland (the property), which was purchased by the defendants in 2012 in the name of a company in which they held the shares, and at a time when the plaintiff’s late wife, Chui Wa Cheung (Chui Wa) was alive, and when Maggie and Esmond were married and living together. Since the property was purchased Maggie and Esmond have separated and Chui Wa died on 19 December 2018.

[3] Following their separation in early 2016 both Maggie and Esmond commenced relationship property proceedings in the Family Court at Manukau, and in 2017 the Family Court made an order joining the plaintiff and Chui Wa as second respondents.

[4] The first defendant, Maggie, opposes the plaintiff’s application for summary judgment and also applies for an order striking out the summary judgment application. She says that the Family Court is already seized of the dispute over the ownership of the property and contends that the plaintiff’s application for summary judgment is consequently an abuse of process. In response to the summary judgment application, she says that it was her understanding that the financial contributions made by the plaintiff and Chui Wa to assist Esmond and herself to purchase the Victoria Street property were by way of gifts and that by reason of language difficulties she did not understand or appreciate that the documents she had signed when the property was purchased, included a bare deed of trust or what its effect was.

[5] Esmond, as second defendant, has taken no steps in the proceeding and does not oppose the plaintiff’s application for summary judgment.1

1 Woolford J noted in his minute of 6 July 2021 that Esmond has advised the plaintiff’s counsel that he does not intend to oppose the plaintiff’s application for summary judgment.

Background

[6] The plaintiff and Chui Wa moved to New Zealand from Hong Kong in 1998.…

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 So v Shi

Details

AGLC: So v Shi [2022] NZHC 214
Case: [2022] NZHC 214
Decision Date: 18 February 2022

CaseChat Overview and Summary

Biu Tao So (the plaintiff) applies for the entry of summary judgment against Yan Shi (known as “Maggie”) who is his daughter-in-law (the first defendant), and also against Hin Sing So (known as “Esmond”) who is his son (the second defendant). The plaintiff claims to be the beneficial owner of a two-thirds interest in an investment property situated at 3/27 Victoria Street West in Auckland (the property), which was purchased in 2012 by the defendants in the name of a company in which they held the shares. The plaintiff’s application is opposed by Maggie who says that the Family Court is already seized of the dispute over the ownership of the property and contends that the plaintiff’s application for summary judgment is consequently an abuse of process. Maggie also submits that she did not understand the terms of the deed of bare trust when she signed it and therefore it is void.

The court finds that the plaintiff has demonstrated his claim against the first and second defendants. The court finds that Maggie has no arguable defence to the plaintiff’s claim against her and Esmond and that the plaintiff is accordingly entitled to summary judgment against them both. The court declines to make the order in the full terms sought by the plaintiff in paragraph (e) of the statement of claim as recovery of the misapplied sum will necessarily await the outcome of the plaintiff’s examination of the relevant company records and may require a further and separate demand for payment of such sum as is determined to have been misapplied by the defendants either together or separately.

The first defendant’s application for an order staying the plaintiff’s claim is declined. The plaintiff’s application for the entry of summary judgment against the first and second defendants is granted. The court makes the following orders for the relief sought by the plaintiff: an order by way of a declaration that Yan Shi and Hin Sing So, jointly hold 200 of the 300 shares in Tim Tim Company Limited as bare trustees for the plaintiff; an order directing Yan Shi and Hin Sing So to forthwith transfer 200 shares in Tim Tim Company Limited to the plaintiff; an order directing Yan Shi and Hin Sing So, so long as they are and remain directors of Tim Tim Company Limited, to procure the company to pay the plaintiff the share of the company’s rental income as provided for in the deed of bare trust; an order that Yan Shi and Hin Sing So forthwith take all necessary steps to obtain a release of all and any liability of Tim Tim Company Limited to the ANZ bank pursuant to the guarantees they entered into, or alternatively to repay and discharge all debts guaranteed by the company without recourse to the assets of the company; and an order directing Yan Shi and Hin Sing So to forthwith produce and deliver to the plaintiff, all and any records of the company relating to its receipt of rental income from the Victoria Street property relating to the period commencing January 2016 and continuing to the present. The plaintiff having been successful in resisting the first defendant’s application for stay of his claim and successful in his application for entry of summary judgment is entitled to an award of costs on both.

Orders