Bai v Ho
[2024] NZHC 1555
•13 June 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2023-419-000247 [2024] NZHC 1555
BETWEEN CYNTHIA BAI
Appellant
AND
ALDEN HO
First Respondent
CRIMSON LEGAL LIMITED
Second Respondent
Hearing: 28 May 2024 Appearances:
Appellant in person (via VMR)
F Iqbal for Respondents (via VMR)
Judgment:
13 June 2024
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 13 June 2024 at 3 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………..
Solicitors: McElroys, Auckland
Copy to: Cynthia Bai
BAI v HO [2024] NZHC 1555 [13 June 2024]
[1] Cynthia Bai, a self-represented litigant, applies for leave to appeal out of time an oral judgment of Judge S R Clark given in the District Court in Hamilton on 22 February 2023 in which Judge Clark struck out proceedings brought by Ms Bai against the respondents, Alden Ho and Crimson Legal.1 Ms Bai also seeks a stay of execution of the Strike-out Judgment and a stay of an award of costs made by Judge Clark on 3 May 2023 in which Judge Clark ordered Ms Bai to pay the respondents’ costs of $14,971.47.2
[2]The respondents oppose Ms Bai’s applications.
Background
[3] In 2022, Mr Ho, the first respondent, who is a solicitor and director of Crimson Legal, the second respondent, on the instructions of Thomas James, obtained a charging order to enforce a costs award against Barry Bai and Caoping Ding arising out of proceedings relating to brick-laying work carried out by NZSouthpole Team Ltd for an Alexander Sidorov. At all material times, Mr Bai was the manager of NZSouthpole and Ms Ding was the sole director and shareholder of NZSouthpole.
The proceedings leading to the charging order
[4]The lengthy history of the proceedings is set out in the judgment of Moore J in
James v NZSouthpole Team Ltd (in liq).3 In summary:
(a)On 26 June 2018, the Disputes Tribunal held that NZSouthpole was liable to Mr Sidorov for the sum of $13,556.25 for the costs incurred in repairing substandard brickwork carried out by NZSouthpole.4
(b)On 8 April 2019, the District Court dismissed appeals by Mr Bai against the Disputes Tribunal decision.5
1 Bai v Ho [2023] NZDC 3529 [Strike-out Judgment].
2 Bai v Ho [2023] NZDC 8188 [Costs Judgment].
3 James v NZSouthpole Team Ltd (in liq) [2021] NZHC 657 [Dismissal Judgment].
4 Order of Disputes Tribunal DC Waitakere CIV-2017-090-001619, 26 June 2018.
5 White Bai v Registrar of Licensed Building Practitioners [2019] NZDC 6246.
(c)In February 2020, Mr Sidorov assigned the debt owed by NZSouthpole to Mr James, who served a statutory demand on NZSouthpole.6
(d)NZSouthpole took no steps and, on Mr James’ application, was put into liquidation in July 2020, following which Mr Bai and Ms Ding refused to cooperate with the liquidators and made various attempts to appeal the decision to place NZSouthpole into liquidation.7
(e)On 31 March 2021, in the Dismissal Judgment, Moore J:
(i)refused to grant leave to Ms Ding to appear on behalf of NZSouthpole in its application for leave to appeal the District Court’s decision;8
(ii)held that the High Court had no jurisdiction to allow a second appeal against the District Court decision;9
(iii)refused to recall or terminate the liquidation of NZSouthpole;10 and
(iv)refused to add Ms Ding as a party to the liquidation proceedings.11
[5] On 27 May 2021, Moore J refused an application by Ms Ding for leave to appeal his dismissal of her application to be added as a party to the liquidation proceedings.12 On 3 November 2021, the Court of Appeal also declined Ms Ding’s application for leave to appeal that aspect of the Dismissal Judgment.13
6 Dismissal Judgment, above n 3, at [25].
7 At [26]–[50].
8 At [54]–[61].
9 At [62]–[63].
10 At [76]–[95].
11 At [96]–[99].
12 Ding v James [2021] NZHC 1189.
13 Ding v James [2021] NZCA 578.
[6] On 7 July 2021, Moore J awarded costs against Ms Ding and Mr Bai as follows:14
(a)$15,972.50 (GST exclusive) in favour of NZSouthpole; and
(b)$21,046.50 (GST inclusive) in favour of Mr James.
[7] On 3 December 2021, the Court of Appeal dismissed an application by Ms Ding and Mr Bai for leave to appeal the Moore Costs Judgment out of time.15
The charging order
[8] On 13 May 2022, Mr Ho, on the instructions of Mr James, obtained a charging order based on the sealed Moore Costs Judgment. The charging order named the subject of the order as Caoping Ding, also known as Cynthia Ding and Cynthia Bai, of an address in Kumeu.
[9] On 27 June 2022, the charging order was served on Ms Bai at the Kumeu address.
[10] In an accompanying letter addressed to Caoping Ding, also known as Cynthia Ding and Cynthia Bai, Mr James advised that a charging order had been obtained and that, unless evidence was provided within seven days of the letter of full payment of the costs ordered by Moore J, steps would be taken to obtain a sale order against the property.
[11]As Judge Clark recorded in the Strike-Out Judgment:16
[9] It is clear that prior to obtaining the charging order Mr James and Mr Ho had discussions and had taken steps involving the instructing investigators. On the basis of information received they formed the view that Ms Caoping Ding, Cynthia Ding and Cynthia Bai were one and the same persons.
14 James v NZSouthpole Team Ltd (in liq) [2021] NZHC 1682 [Moore Costs Judgment] at [43].
15 Bai v James [2021] NZCA 652 [CA Dismissal Judgment].
16 Strike-out Judgment, above n 1,
[12] Ms Bai does not deny that she lived at the Kumeu address when the charging order was served but denies being Caoping Ding or Cynthia Ding.
[13] After being served with the charging order, on 28 June 2022, Ms Bai contacted the Auckland High Court to advise that she was not the same person as Caoping Ding or Cynthia Ding. Subsequently, on 30 June 2022, the charging order was recalled.
Ms Bai brings proceedings
[14] Ms Bai then, on 9 August 2022, filed proceedings against Mr Ho and Crimson Legal seeking damages of $193,879.59 for alleged losses suffered as a result of the charging order. Ms Bai based her claim on alleged breaches of the Criminal Procedure Act 2011, the Evidence Act 2006, the Lawyers and Conveyancers Act 2006 and the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. In material filed subsequently, Ms Bai also alleged breaches of the Accident Compensation Act 2001. The claimed losses were based on an alleged withdrawal from work, mental health injury, psychological injury, mental distress and loss of an opportunity to take up a senior role in her chosen profession in emergency health services.
[15] Mr Ho and Crimson Legal then applied to strike out Ms Bai’s statement of claim.
Strike out application and costs
[16] Following a hearing on 22 February 2023, in the Strike-out Judgment, which was delivered orally, Judge Clark struck out Ms Bai’s statement of claim. The Judge observed that damages were not recoverable for breaches of the Acts and Rules on which Ms Bai based her claim, that the alleged breaches were unintelligible as a cause of action, and that the relief claimed was beyond the jurisdiction of the Court.17 The Judge also held that there was little logical connection between what Ms Bai said had happened and the alleged losses.18
17 Strike-out Judgment, above n 1, at [34]–[39].
18 At [41].
[17] The Judge also noted that Ms Bai alleged that Mr Ho had acted unethically, bullied her, harassed her, lacked competency and had engaged in misleading conduct.19 The Judge went on to say:
[43] Essentially, Ms Bai is alleging that Mr Ho has acted fraudulently in the wider sense of that phrase. I take note of the fact that when there is a serious allegation of fraud or dishonesty special care must be taken by a person alleging that to ensure that there is credible material that establishes a prima facie case of fraud, which the plaintiff has failed to do.
[18] In the Costs Judgment, on 3 May 2023, Judge Clark awarded the respondents scale costs of $7,735.50, calculated on a 2B basis, with an uplift of 75 per cent, and disbursements of $1,434.34, totalling $14,971.47.20 The Judge held that Ms Bai’s case was hopeless but declined to award indemnity costs as sought by Mr Ho and Crimson Legal because Ms Bai was self-represented and could not be expected to know all the requirements for pleading a statement of claim. However, he awarded a 75 per cent uplift because Ms Bai had failed to act reasonably in the proceeding.21
Ms Bai’s subsequent appeals and applications
[19] On 27 August 2023, Ms Bai filed a notice of appeal against the Strike-out Judgment and the Costs Judgment, and a without notice application to recall both judgments. As noted in my minutes dated 20 September 2023 and 18 October 2023, there were various procedural difficulties with Ms Bai’s appeals and application.22 In particular, any application to recall the Strike-out Judgment and the Costs Judgment had to be made to the District Court; not the High Court.23
[20] On 6 December 2023, Walker J made timetable directions for Ms Bai’s further guidance.24 In particular, Walker J set out for Ms Bai, the steps she needed to take to effect service of applications for extensions of time to appeal the Strike-out Judgment and the Costs Judgment and an application to stay the execution of the Costs Judgment.
19 At [42].
20 Costs Judgment, above n 2, at [16].
21 At [13]–[15].
22 Bai v Ho HC Auckland CIV-2023-419-000247, 20 September 2023 (Minute of van Bohemen J);
Bai v Ho HC Auckland CIV-2023-419-000247, 12 October 2023 (Minute of van Bohemen J).
23 Bai v Ho HC Auckland CIV-2023-419-000247, 20 September 2023 (Minute of van Bohemen J) at [7].
24 Bai v Ho HC Auckland CIV-2023-419-000247, 6 December 2023 (Minute of Walker J).
[21]On 12 December 2023, Ms Bai filed and apparently served:
(a)a document titled “Interlocutory Application” in which Ms Bai purported to apply for:
(i)the recall of the Strike-out Judgment and the Costs Judgment;
(ii)leave to apply for extensions of time to appeal the Strike-out Judgment and the Costs Judgment; and
(iii)a stay of execution of the Strike-out Judgment and a stay of the Costs Judgment;
(b)a document titled “Notice of Appeal on 11 Dec 2023” in which Ms Bai took issue with the conduct of the hearing before Judge Clark on 22 February 2023, in particular that, in her view, the Judge had not had regard to the documents filed in support of her claims, and sought:
(i)a direction that the Solicitor-General be served with the notice of appeal and documents filed in the appeal;
(ii)the appointment of an amicus curiae; and
(iii)a formal proof hearing.
[22] On 15 January 2024, the respondents filed a notice of opposition to Ms Bai’s application seeking leave to appeal out of time the Strike-out Judgment and a stay of the Costs Judgment.
[23] On 22 May 2024, Wilkinson-Smith J declined Ms Bai’s application for the appointment of an amicus curiae but granted Ms Bai’s application to attend the hearing of her applications remotely from Australia, where she is now resident, by Virtual
Meeting Room (VMR). The Judge also granted an application by the respondents’ counsel to appear remotely from Auckland by VMR.25
Submissions of the parties
[24] Ms Bai addressed the merits of her claims against the respondents. She said the respondents, who were legal professionals, had presented false evidence to support their application for a charging order, had broken the law and had caused mental stress to Ms Bai and her daughter. Ms Bai also said she had not received a hard copy of the Strike-out Judgment, that the respondents would suffer no losses if she were allowed to continue her appeal and that it was in the interests of justice that she be given an opportunity at a comprehensive, substantive hearing to discuss the factual contents of the case. Ms Bai said fairness required that there be a full investigation based on the evidence she had presented.
[25] Ms Bai also said it was in the interests of justice for the case to be referred to the Solicitor-General and for an amicus curiae to be appointed, despite the decision of Wilkinson-Smith J.
[26] Ms Iqbal, counsel for the respondents, set out the principles applicable to an application for an extension of time to file an appeal and for a stay of execution of a judgment. Ms Iqbal submitted that the length of time since the Strike-out Judgment was substantial and noted that it followed steps taken by the respondents to secure payment of the costs ordered in the Costs Judgment.
[27] Ms Iqbal submitted that Ms Bai had not articulated any proper grounds for appeal, or alleged any errors of law or fact in the Strike-out Judgment and submitted that the substantive appeal was without merit, had no prospect of success and that it was not in the interests of justice that an extension of time be granted.
[28] With regard to Ms Bai’s application for a stay of execution of the Costs Judgment, Ms Iqbal submitted that the respondents were entitled to the fruits of their judgment and that Ms Bai had not demonstrated why a stay was justified or provided
25 Bai v Ho HC Auckland CIV-2023-419-000247, 22 May 2024 (Minute of Wilkinson-Smith J) at [3]–[4].
evidence to establish that the respondents would be incapable of repaying the judgment sums and interest, if she were successful on appeal, or any prejudice that would be caused to her if a stay were not granted.
The hearing on 28 May 2024
[29] At the hearing on 28 May 2024, I explained to Ms Bai the various procedural and substantive difficulties she faced with her applications. I noted that Ms Bai had brought her initial proceeding and her applications for an extension of time and a stay of execution without the benefit of legal advice and that, as a consequence, her applications were procedurally and substantively deficient and had no prospect of success. I said that it was not sufficient for Ms Bai to allege wrongdoing on the part of the respondents, invoke statutes which she considered relevant and then expect the Court to undertake its own investigation into her allegations. It is for a plaintiff to prove its case, based on evidence and not just unsupported allegations.
[30] Ms Bai said that this position had not been explained to her before but that she still considered that the Court had an obligation to act in the interests of justice.
Analysis
[31] Despite the procedural confusion brought about by Ms Bai’s various applications, by the time of the hearing, it was apparent that the applications that needed to be decided were:
(a)an application for extensions of time to appeal the Strike-out Judgment and the Costs Judgment; and
(b)an application to stay the execution of the Costs Judgment.
[32]For Ms Bai’s benefit, I record the following:
(a)As Ms Bai has been previously advised, any application to stay the Strike-out Judgment and the Costs Judgment must be made to the District Court.
(b)There is no purpose in staying the execution of the Strike-Out Judgment. It does not require any action on the part of Ms Bai pending the outcome of her application for an extension of time to appeal that judgment.
(c)For reasons discussed below, there is no merit in Ms Bai’s assertion that the interests of justice require the Solicitor-General to be served with the proceedings.
(d)The formal proof procedure does not apply where the respondents are taking an active part in the proceeding.
Application for extensions of time to appeal
[33] While Ms Bai asked the Court to examine the substantive merits of her claims when considering her application for extensions of time, the Court’s task in considering applications to appeal out of time is necessarily more limited, as I explained to Ms Bai.
[34]As stated by the Court of Appeal in the CA Dismissal Judgment:26
[13] When considering an exercise of the discretion to extend time, the ultimate question is what the interests of justice require. Factors include:
(a)the length of the delay;
(b)the reasons for the delay;
(c)the conduct of the parties, particularly the applicant;
(d)any prejudice or hardship to the respondent or others;
(e)the significance of the issues raised by the proposed appeal; and
(f)the merits of the proposed appeal (though this requires caution).
[35]I consider each factor in turn.
26 CA Dismissal Judgment, above n 15.
Length of delay
[36] Ms Bai’s notice of appeal was filed just over five months out of time with respect to the Strike-out Judgment and just under three months out of time with respect to the Costs Judgment, having regard to r 18.4(2)(b) of the District Court Rules 2014, which requires appeals of judgments of the District Court to be brought within 20 working days of the date of judgment. While the periods of delay are not excessive, they are significant in the context of decisions to strike out a statement of claim and to impose a significant uplift of costs.
[37]I do not consider this factor supports the granting of extensions of time.
Reasons for delay
[38] Ms Bai’s explanation for the delay — that she had expected to receive a hard- copy of the Strike-out Judgment before she had to take any action — is not a credible or valid reason for the delay. Ms Bai acknowledged receiving the judgment by email. Ms Bai also acknowledged filing the notice of appeal after the respondents took action to secure payment of the costs ordered in the Costs Judgment. I consider it more likely that Ms Bai chose to do nothing about the two judgments until she realised the cost consequences which she then sought to avoid by bringing her appeals.
[39]I do not consider this factor supports the granting of extensions of time.
Conduct of the applicant
[40] Like Judge Clark, I consider Ms Bai has not acted reasonably. As I outlined earlier, Ms Bai has alleged wrongdoing on the part of the respondents, invoking irrelevant statutes and relying on the Court to undertake its own investigation into the allegations without supplying any supporting evidence for her claims. Ms Bai has not engaged with the legal tests relevant to her applications and has not sought legal advice.
[41]I do not consider this factor supports the granting of extensions of time.
Prejudice to respondents or others
[42] I consider there is no significant prejudice to the respondents or anyone else if Ms Bai should be granted an extension of time to appeal the Strike-out Judgment. However, the position is different with respect to the Costs Judgment. The respondents incurred costs in seeking the strike-out of Ms Bai’s statement of claim and were granted an uplift because Ms Bai failed to act reasonably. The respondents are prejudiced by not having their costs paid.
[43]I do not consider this factor supports the granting of extensions of time.
Significance of issues raised by proposed appeals
[44] Despite Ms Bai’s submission to the contrary, I do not accept that her proposed appeals raise any issues of significance. Ms Bai alleges that the respondents acted fraudulently and says they should be punished because she suffered losses as a result of their actions.
[45] Ms Bai’s allegations of fraud relate to the respondents’ actions in obtaining the charging order. Even if those allegations have substance, the consequences of the alleged fraud were minimal. The charging order was served. After Ms Bai approached the Auckland High Court, the order was discharged. No action was taken against Ms Bai. Whatever injury Ms Bai claims to have suffered as a result of service of the charging order, none of what happened raises any issue of general or public importance or any other issue of significance. Nor does the Costs Judgment raise any issues of significance.
[46]I do not consider this factor supports the granting of extensions of time.
Merits of proposed appeals
[47] Despite Ms Bai’s allegations of fraud, which are based principally on her own assertions, the background to Ms Bai’s claim shows that the respondents had every right to enforce the Moore Costs Judgment. Based on Ms Ding’s actions in the previous proceedings over the non-payment of the debt incurred and costs awarded over the substandard brickwork, the respondents also had strong grounds to believe
that Ms Ding would seek to avoid payment of the costs ordered in the Moore Costs Judgment if she could. They understood that Ms Ding lived at the Kumeu address, where Ms Bai lived. On the basis of investigations, they believed Ms Ding and Ms Bai to be the same person. There was a reasonable basis, therefore, for the respondents to obtain the charging order on the terms sought. Moreover, once Ms Bai had approached the Auckland High Court, the order was discharged within three days of it being served, and no action was taken against Ms Bai.
[48] In these circumstances, and in the absence of any independent evidence of the losses that Ms Bai claims to have suffered, I see no merit in Ms Bai’s appeal against the Strike-out Judgment, particularly when the statutes that Ms Bai invoked in support of her claim do not provide for individual suit of the kind taken by Ms Bai.
[49] I also see no merit in Ms Bai’s appeal against the Costs Judgment, which involved the application of established principles for the award of costs against an unsuccessful party who has acted unreasonably.
[50] I consider this factor to weigh strongly against the granting of any extensions of time.
Conclusion on applications for extensions of time
[51] For all the above reasons, I see no factors weighing in favour of granting extensions of time for Ms Bai to appeal the Strike-out Judgment or the Costs Judgment. I dismiss Ms Bai’s applications for extensions of time.
Application to stay Costs Judgment
[52]In Keung v GBR Investment Ltd, the Court of Appeal said:27
… In determining whether or not to grant a stay, the Court must weigh the factors “in the balance” between the successful litigant's rights to the fruits of a judgment and “the need to preserve the position in case the appeal is successful”.
(footnote omitted)
27 Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [11].
[53] Since I have dismissed Ms Bai’s application for an extension of time to appeal the Costs Judgment, there is no position to preserve in relation to a possible successful appeal. There is no basis, therefore, for staying execution of the Costs Judgment.
Result
[54]I dismiss:
(a)Ms Bai’s application for extensions of time to appeal the Strike-out Judgment and the Costs Judgment; and
(b)Ms Bai’s application for a stay of execution of the Costs Judgment.
Costs
[55] As the successful parties, the respondents are entitled to costs. I am satisfied that costs should be assessed on a 2B basis, as they were in the District Court, but subject to any submissions for increased costs.
[56] Ms Iqbal has asked that I make timetable directions for the filing of memoranda on costs. Accordingly, I direct that:
(a)the respondents are to file any memorandum on costs by 5 July 2024; and
(b)Ms Bai is to file any memorandum on costs by 26 July 2024.
G J van Bohemen J
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