Young v Zhang

Case [2017] NZCA 622


IN THE COURT OF APPEAL OF NEW ZEALAND

CA646/2016
[2017] NZCA 622

BETWEEN

JINYUE YOUNG
Appellant

HSIANG-FEN YING
Second Appellant

AND

ZIE ZHANG
Respondent

Hearing:

6 November 2017

Court:

Kós P, Courtney and Toogood JJ

Counsel:

Appellants in Person
No appearance for Respondent

Judgment:

21 December 2017 at 11.00 am

JUDGMENT OF THE COURT

A        The application for leave to adduce further evidence is declined.

B        The appeal against the refusal to set aside the consent order is dismissed.

CThe appeal against the finding of contempt is dismissed.

DThe appeal against the penalty is allowed.  The penalty is quashed and a fine of $7,500 substituted.

EThere is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

  1. This appeal has its origins in a sale and purchase agreement that failed to settle.  The vendor was King David Investments Ltd (KDIL), of which the second appellant, Ms Ying, was the sole director and shareholder.  The purchaser was the respondent, Ms Zhang.  The dispute was eventually settled and the terms of settlement recorded in a settlement agreement.  The agreement required a consent order, which Duffy J made in a minute of 5 July 2016.  The consent order required KDIL to transfer the property to Ms Zhang.  Ms Ying and her husband, Mr Young, applied to set aside the consent order.  By the time their application was heard KDIL had sold the property to a third party and was in liquidation.

  2. In the decision presently under appeal, Palmer J refused to set aside the consent order and imposed on Ms Ying a fine of $10,000 for contempt of court in breaching court orders.[1]  Mr Young and Ms Ying appeal.  The grounds of appeal against Palmer J’s refusal to set aside the consent order are that the Judge erred in:

    (a)disregarding the evidence that Ms Ying and Mr Young were affected by illness and exhaustion when they signed the settlement agreement;

    (b)rejecting their evidence as to their misunderstanding of the settlement agreement; and

    (c)treating their original defences to the claim for specific performance as having been superseded by the settlement agreement/consent order.

  3. Ms Ying’s grounds of appeal against Palmer J’s finding of contempt and imposition of a fine are that:

    (a)Ms Ying was not bound by the order until she had been served with the sealed order and, had she been served with the order promptly, KDIL would not have sold the Hoteo Avenue property when it did;

    (b)the order was ambiguous; and

    (c)the penalty was inappropriate.

Background 

  1. KDIL owned a residential property in Hoteo Avenue, Papatoetoe.  It was subject to a mortgage in favour of Hong Kong Shanghai Banking Corporation Ltd (HSBC) as partial security for a loan of $880,000.  On 14 April 2013 Ms Ying signed an agreement for sale and purchase under which KDIL agreed to sell the Hoteo Avenue property to Ms Zhang (the agreement).  Mr Young also signed the agreement,…

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Young v Zhang [2017] NZCA 622
Case
[2017] NZCA 622
Decision Date

CaseChat Overview and Summary

This appeal has its origins in a sale and purchase agreement that failed to settle. The vendor was King David Investments Ltd (KDIL) and the purchaser was the respondent, Ms Zhang. The dispute was eventually settled and the terms of settlement recorded in a consent order. The consent order required KDIL to transfer the property to Ms Zhang. Ms Ying and her husband, Mr Young, applied to set aside the consent order. The Judge refused to set aside the consent order and imposed on Ms Ying a fine of $10,000 for contempt of court in breaching court orders. Mr Young and Ms Ying appeal. They appeal the Judge's refusal to set aside the consent order and Ms Ying's finding of contempt and penalty. The appeal against the refusal to set aside the consent order is dismissed. The appeal against the finding of contempt is dismissed. The appeal against the penalty imposed is allowed. The penalty is quashed and a fine of $7,500 substituted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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