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Young v Zhang

Young v Zhang

Case [2017] NZCA 622 21 December 2017

Contempt of Court

Limitation Periods

Specific Performance

Admissibility of Evidence

Expert Evidence

Civil Litigation & Procedure

Contempt of Court

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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

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.
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(c)treating their original defences to the claim for specific performance as having been superseded by the settlement agreement/consent order.
[1]Zhang v King David Investments Ltd (in liq) [2016] NZHC 3018 [Palmer J’s judgment].
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

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,…

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 Young v Zhang

Details

AGLC: Young v Zhang [2017] NZCA 622
Case: [2017] NZCA 622
Decision Date: 21 December 2017 at 11.00 am

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