Ooi v Ting [2016] NZHC 481 (21 March 2016)

Last Updated: 22 April 2016

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 traffic accident late in 2015 and attached a copy of medical certificate to the effect that he was “unfit to continue his usual occupation” from Saturday 24 October 2015 to Saturday 5

December 2015.

(b) Mr Ting speaks Cantonese and does not use email so international telephone communication in Mandarin has inhibited counsel’s communication with him.

(c) In the circumstances Mr Ting sought an extension of 4 weeks to put together a defence.

Law

[8] Rule 15.9 of the High Court Rules provides that:

(3) After a proceeding is listed for a formal proof hearing, no statement of defence may be filed without the leave of a Judge granted on the ground that there will or may be a miscarriage of justice if judgment by default is entered, and on such terms as to time or otherwise as the Judge thinks just.

[9] As Duffy and Kos JJ have held, the considerations relevant to granting leave under this provision are the same as those relevant to setting aside a default

_{judgment, which are:}¹

¹ Shoye Venture Ltd v Wilson & Anor [2013] NZHC 2339 at [13] and Neumayer v Kapiti Coast

District Council [2014] NZHC 417 at [7]- [8].

(a) whether the defendant has a substantial ground of defence; (b) whether the delay is reasonably explained; and

(c) whether the plaintiff will suffer irreparable injury if leave to defend is belatedly granted.

Arguments

[10] In the flurry of memoranda dated from 9 to 18 March 2015, that naturally followed Mr Ting’s request for leave to file a statement of claim, Ms Ooi’s counsel has submitted:

(a) Mr Ting’s wife had offered to receive service on his behalf. This occurred on 15 September 2015, seven weeks before the date of the accident. So Mr Ting was already out of time when he had the accident.

(b) Mr Ting had been aware of the issue from 8 May 2015 when his solicitor was sent a letter setting out the issue and he had sought to evade engagement.

(c) The memorandum of counsel is not a proper means of entering an appearance or of an application.

[11] In response, Mr Ting has submitted, by way of Memorandum of Counsel and an affidavit:

(a) Ms Ooi knows that Mr Ting lives in Australia and knows his address.

(b) Mr Ting wife, Sai Moey Yeoh, lives in Auckland but did not accept the court documents which he says were handed to his son on 26

September 2015. Mr Ting only received the Statement of Claim by post on 15 October 2015 from his daughter in law. His accident was

on 20 October 2015. His doctor’s advice was received a few days later and he was not able to work until 5 December 2015.

(c) Any letter prior to the issue of proceedings is irrelevant to defending the proceedings themselves.

(d) It is unclear whether r 6.27 of the High Court Rules, which allows service outside New Zealand, was complied with and r 6.31, which requires an additional notice for service outside New Zealand, was not complied with. (I note that this cannot be correct because the court’s order was for substituted service within New Zealand.)

(e) Counsel says he had asked the court registry in January 2016 whether an application for formal proof had been requested and was not told there had been and was not given any court documents as requested in an email of 18 January 2016.

(f) It would not be fair and reasonable, and would be a miscarriage of justice, if the formal proof is allowed to proceed.

Leave to file a Statement of Defence?

[12] Overall, there is little to go on in exercising my discretion as to whether to grant leave to Mr Ting to file a Statement of Defence.

No substance to defence

[13] Nothing filed on behalf of Mr Ting that says anything about the substance of his defence. This does not advance his cause.

No irreparable injury to plaintiff

[14] Neither is it clear that Ms Ooi will suffer irreparable injury if leave to defence is belatedly granted. All that would occur is that a defence, of some indeterminate kind, will be mounted.

Some explanation of delay

[15] Mr Ting’s account of the date of his receipt of the Statement of Claim, and the timing of his accident, does appear to provide a reasonable explanation for why he did not file a Statement of Defence by 5 December 2016. However, the supporting details do not entirely square with the affidavit by Ms Ooi’s server. And Mr Ting’s explanation does not explain what steps were taken to defend his position after 5 December 2015 and when they were taken. Against this, Mr Ting’s counsel’s inquiries of the court as to the status of the situation, including a copy of an email inquiry to the registry on 18 January 2016, suggest some steps were taken then to discover the state of the proceedings.

Context

[16] All this occurs in the context of Ms Ooi’s application for formal proof which has not yet been set down. Neither has that application been supported by the production of affidavit evidence as directed by the Court on 15 February 2016, which noted that it would be in Ms Ooi’s interests to file that evidence as soon as possible.

Decision

[17] The overall test I am required to apply by r 15.9(3) is whether “there will or may be a miscarriage of justice if judgment by default is entered”. The evidence regarding the relevant considerations does not help to establish that there would be a miscarriage of justice. In particular, Mr Ting’s failure to identify any substantive grounds for his defence of Ms Ooi’s claim means that I cannot say that there would be a substantive miscarriage of justice if he is unable to defend the claim.

[18] Accordingly, I do not grant leave for Mr Ting to file a Statement of Defence.

[19] However, the possibility remains that Mr Ting has a good defence. If he does, then the interests of justice suggest he should be able to mount it, given the reasonable (but partial) explanation for delay and the apparent lack of prejudice to Ms Ooi where there is, as yet, no affidavit evidence and no fixture.

[20] Accordingly I direct that, if he wishes to renew his application for leave to file a statement of defence Mr Ting must file with the Court, and serve on Ms Ooi, by 5pm Monday 18 April 2016:

(a) an application for leave to file a statement of defence; (b) a draft of the Statement of Defence that would be filed;

(c) submissions regarding the application for leave of no more than 10 pages; and

(d) any affidavits necessary to support the submissions on leave.

[21] If Mr Ting does file such documents then, within 10 working days of him doing so, Ms Ooi has leave to file submissions of no more than 10 pages in response and any affidavits in response.

[22] If Mr Ting does not meet the deadline then Ms Ooi is to file her affidavit evidence supporting her application for formal proof by Tuesday 3 May 2016.

[23] Whatever documents are filed are to be brought to the attention of the relevant duty judge for appropriate directions which may include granting leave to file a statement of defence or setting down a hearing for formal proof.

[24] I would be inclined to award costs against Mr Ting for the steps involved in applying for formal proof, filing the memoranda leading to this judgment, and any further steps consequent upon Mr Ting taking up the leave reserved in this judgment. However, I leave that to be decided in the context of the outcome of the litigation as a whole.

Palmer J