IWA v. Liu

C99-0629.html Citation: I.W.A. and Community Credit Union v. Liu et al Date: 19991025 1999 BCCA 629 Docket: CA024112 Registry: Vancouver

COURT OF APPEAL FOR BRITISH COLUMBIA

ORAL REASONS FOR JUDGMENT Before: The Honourable Mr. Justice Hollinrake October 25, 1999 The Honourable Madam Justice Rowles The Honourable Madam Justice Ryan Vancouver, B.C. BETWEEN: I.W.A. AND COMMUNITY CREDIT UNION

PLAINTIFF (RESPONDENT) AND: STEPHEN CHI-HSING LIU, CLAUDIA HSAIO-YUN LIU, LINDA LIU and LAWRENCE SHIH-LIU

DEFENDANTS (APPELLANTS) R.G. Pederson appearing for the Appellant K.E. Geiger and D. Moonie appearing for the Respondent [1] HOLLINRAKE, J.A.: This is an appeal from a judgment in which the plaintiff succeeded in a Fraudulent Conveyance Act action. The position of the appellant before us, in addition to matters of law that he raises, is that the judge during the course of his reasons for judgment fell into palpable and overriding error. [2] We have spent a good deal of time during this hearing dealing with this issue. The respondent concedes that there are errors of fact, and as I understand counsel, she would concede that they may be palpable but submits that they are not overriding. Her position is that if one reads the whole of the judgment, one cannot come to any other conclusion than that this judge disbelieved the appellants on every single material fact that was before him. However, the reasons for judgment themselves, in my opinion, clearly disclose error and I cannot conclude otherwise than that that error is overriding. I say this because as the judge himself said this is a credibility case. The issue of substance before the judge was whether or not there was an intent to defraud, hinder, delay and so on. These are findings of fact, of substance and are not only palpable, but as I have said, overriding. They are clearly wrong to use that expression found in the cases

where judgments have been set aside on this ground. [3] In my opinion, this Court has no alternative but to allow this appeal and set aside the judgment in the Court below and I would so order. [4] ROWLES, J.A. I agree. [5] RYAN, J.A. I agree. [6] HOLLINRAKE, J.A. The appeal is allowed; the judgment below is set aside and a new trial ordered. Costs follow the event. "The Honourable Mr. Justice Hollinrake"