Ying� v Zhang - [2018] NZSC 27

IN THE SUPREME COURT OF NEW ZEALAND

SC 4/2018
[2018] NZSC 27

BETWEEN	HSIANG‑FEN YING AND JINYUE YOUNG Applicants
AND	ZIE ZHANG Respondent

Court:	Elias CJ, Glazebrook and Ellen France JJ
Counsel:	Applicants in person No appearance for Respondent
Judgment:	28 March 2018

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B No order as to costs.
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REASONS

Introduction

This is an application for leave to appeal against a judgment of the Court of Appeal.[1] The Court dismissed an appeal against the refusal of the High Court to set aside a consent order and dismissed an appeal against a finding of contempt.[2] The Court allowed an appeal against the penalty (a $10,000 fine) imposed for contempt and substituted a fine of $7,500.

Background

[1]Young v Zhang [2017] NZCA 622 (Kós P, Courtney and Toogood JJ) [CA judgment].

[2]Zhang v King David Investments Ltd (in liq) [2016] NZHC 3018 (Palmer J) [HC judgment].

The present proceeding arose out of an agreement by a company, King David Investments Ltd (King David), to sell a property to the respondent, Zie Zhang, which did not settle. Hsiang‑Fen Ying, one of the two applicants, was the sole shareholder and director of King David.[3]
[3]The other applicant, Mr Young, is Ms Ying’s husband. (Palmer J made reference to Mr Young’s legal background: HC judgment, above n 2, at [4].)
Ms Zhang sought specific performance. The proceeding was settled and the terms of settlement recorded in consent orders made in the High Court. Subsequently, the present applicants tried to appeal the consent orders including an unsuccessful attempt to appeal to the Court of Appeal. On 30 August 2016, the day after the Court of Appeal said it had no jurisdiction to hear the appeal, an agreement was entered into to sell the disputed property to a third party for value. Settlement of that agreement occurred on 12 September 2016.
In response, Ms Zhang issued the present proceeding in the High Court. The respondent sought writs of arrest, a finding of contempt and a freezing order over another property owned by the Ying and Young Trust (the Trust’s property).
By the time Palmer J heard the matter, it was accepted specific performance was no longer possible. Palmer J rejected all of the grounds which the present applicants relied on for setting aside the consent order, for example, their ill-health and exhaustion. Essentially, he found their evidence lacked credibility. The consent order was varied to remove the obligation to transfer the property and associated orders were made as to payment to Ms Zhang.
Palmer J found that the elements of civil contempt were met. In particular, the Judge said that there was a clear order of which Ms Ying had notice and which she deliberately breached. Palmer J declared that Ms Ying was in contempt and she was ordered to pay a fine of $10,000 or risk imprisonment if payment was late.
The applicants appealed. The Court of Appeal took 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 Ying� v Zhang

Details

AGLC: Ying� v Zhang [2018] NZSC 27
Case: [2018] NZSC 27
Decision Date: 28 March 2018

CaseChat Overview and Summary

Ying v Zhang was an application for leave to appeal a decision of the Court of Appeal, which had dismissed an appeal against the refusal of the High Court to set aside a consent order and an appeal against a finding of contempt, but reduced the penalty imposed for contempt. The applicants were Hsiang-Fen Ying and Jinyue Young, and the respondent was Zie Zhang. The applicants were the sole shareholder and director of King David Investments Ltd, which had entered into a consent order to sell a property to the respondent. The applicants attempted to appeal the consent orders and were found in contempt of court for breaching the orders. The Court of Appeal dismissed the appeal against the refusal to set aside the consent order, upheld the finding of contempt, and reduced the penalty. The applicants sought leave to appeal to the Supreme Court of New Zealand.

The legal issues in this case were whether the applicants should be granted leave to appeal the decision of the Court of Appeal and whether the Court of Appeal had erred in its approach to contempt. The applicants argued that the Court of Appeal had erred in finding that they had committed contempt and in reducing the penalty. They also argued that there was an appearance of a miscarriage of justice because they had not been warned of the risk of self-incrimination. The Court had to decide whether the applicants had met the criteria for leave to appeal and whether the Court of Appeal’s approach to contempt was correct.

The Court held that the applicants had not met the criteria for leave to appeal because the proposed appeal raised only factual questions and no question of general or public importance. The Court also held that the approach taken to contempt in this case may have given rise to a general question of law, but the challenges the applicants wished to pursue were limited to factual questions. The Court noted that it was not making any comment on the issues relating to contempt that might arise in other cases. The Court concluded that there was no appearance of a miscarriage of justice given the applicants’ conduct. The application for leave to appeal was dismissed, and no order was made as to costs.

This case highlights the importance of meeting the criteria for leave to appeal and the limited scope of appeals on factual questions. It also illustrates the Court’s approach to contempt and the consequences of breaching a consent order. The case shows that the Court will not grant leave to appeal if it considers that there is no appearance of a miscarriage of justice or that the proposed appeal raises only factual questions. The case also demonstrates the Court’s willingness to reduce a penalty for contempt if it considers that it is inconsistent with fines imposed in other comparable cases.

Orders