Bai v Ho - [2024] NZHC 1555

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…

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 Bai v Ho

Details

AGLC: Bai v Ho [2024] NZHC 1555
Case: [2024] NZHC 1555
Decision Date: 13 June 2024

CaseChat Overview and Summary

Cynthia Bai appeals against the District Court's oral judgment striking out her proceedings against Alden Ho and Crimson Legal. She seeks leave to appeal out of time and a stay of execution of a costs award. The respondents oppose the applications. The court must consider whether extensions of time to appeal should be granted and whether the execution of the Costs Judgment should be stayed. Bai's claims are based on alleged breaches of various statutes and rules, for which damages are not recoverable. The court dismissed Bai's claims as unintelligible and beyond the court's jurisdiction. The appeal against the Strike-out Judgment has no merit, as the respondents had a reasonable basis to obtain the charging order. The appeal against the Costs Judgment involves the application of established principles for the award of costs. The appeals are dismissed, and the stay of execution of the Costs Judgment is refused. Costs are to be assessed on a 2B basis. The respondents are to file their memorandum on costs by 5 July 2024, and Bai is to file hers by 26 July 2024.

Orders