Auckland Weihao Investment Limited v Chen

[2021] NZHC 2914

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2515

[2021] NZHC 2914

UNDER

the Companies Act 1993

BETWEEN

AUCKLAND WEIHAO INVESTMENT LIMITED

Judgment Creditor

AND

LIYUN CHEN

Judgment Debtor

Hearing:	On the papers
Counsel:	DK Wilson for the Judgment Creditor L Chen, self-represented
Minute:	29 October 2021

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 6 October 2021 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:

Raymond S Walker, Auckland DK Wilson, Auckland

Copy to:
L Chen, Auckland

AUCKLAND WEIHAO INVESTMENT LTD v CHEN [2021] NZHC 2914 [29 October 2021]

Introduction

[1]    Following the resolution of the judgment debtor’s application to set aside the bankruptcy notice by consent and therefore the effective discontinuance of this proceeding, Ms Chen filed a memorandum dated 23 March 2021 seeking an order for costs in respect of the filing fees paid for the application to set aside ($500) and a translation fee of $250. The judgment debtor represented herself and so has only claimed the disbursements incurred on the application.

[2]    A further memorandum was filed by the judgment debtor on 29 March 2021 which is relatively difficult to follow, making further allegations in relation to compliance with s 10 of the Companies Act 1993 and in relation to money laundering but again seeking payment of the filing fee of $500 and the translation fee of $250.

[3]    A memorandum was then filed on behalf of counsel for the judgment creditor opposing the judgment debtor’s claim for payment of the disbursements.

Factual Background

[4]    The judgment debt on which the bankruptcy notice was based was an order for the judgment debtor to pay costs of $12,956.00 made by this Court in another proceeding, CIV-2020-404-1200.

[5]    In addition to the application to set aside, the original application filed by the judgment debtor sought orders that the solicitors who were acting at the time for the judgment creditor cease acting. The judgment creditor submits that there was no ground as to why change of representation was needed but chose to instruct new lawyers as a pragmatic response.

[6]    The judgment debtor then failed to appear at the first call of the application to set aside.

[7]    Two days before the next call the judgment debtor filed a memorandum seeking to vacate the first call, dismiss the matter (presumably meaning the bankruptcy proceedings) or stay the bankruptcy proceedings until after substantive proceedings brought by Ms Chen had been finally determined.

[8]    The following day Ms Chen filed a further memorandum seeking the adjournment of the call on the basis that a translator was not available.

[9]    It was only following the second memorandum that the judgment creditor filed a memorandum advising that the judgment creditor was now not intending to pursue the unpaid costs award by way of creditor’s petition and so accordingly the matter could be treated as discontinued.

Discussion

[10]Rule 15.23 of the High Court Rules 2016 provides that on a discontinuance:

Unless the defendant otherwise agrees or the Court otherwise orders, a plaintiff who discontinues a proceeding against a defendant may pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[11]   The question for the Court is whether the circumstances are such that it is just and equitable for the presumption in r 15.23 not to apply.

[12]   At the time the judgment creditor decided to discontinue, the judgment debtor had still not paid the costs award made in CIV-2020-404-1200 and remained in default. In the memorandum confirming discontinuance, counsel for the judgment creditor advised that the judgment creditor was still intending to seek compliance with the Court’s costs order but had decided to do so by means other than bankruptcy.

[13]   The judgment creditor submits that it would be unjust to make an order that it pay the disbursements when Ms Chen had failed to comply with an order of the Court through her failure to pay the costs award.

[14]   The steps taken by the judgment debtor leading up to the discontinuance as outlined above make it clear that it would have been a time consuming and costly process for the judgment creditor to obtain the orders sought, therefore justifying discontinuance for pragmatic reasons rather than because of any issue with the basis of the judgment creditor’s proceedings In these circumstances it is not in the interests of justice for an order to be made for the judgement creditor to pay the disbursements of the judgment debtor.

Order

[15]   The judgment debtor’s application for an order to be paid the disbursements incurred of $750 is declined.

Associate Judge Sussock