Bai v James - [2022] NZSC 28

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 1/2022
[2022] NZSC 28

BETWEEN	CAOPING DING AND BARRY BAI Applicants
AND	THOMAS EDMUND WILLIAM JAMES First Respondent KEATON PRONK, IAIN MCLENNAN AND MCDONALD VAGUE LIMITED Second Respondents

Court:	William Young, Glazebrook and O’Regan JJ
Counsel:	Applicants in person B M K Pamatatau for First Respondent B L Martelli for Second Respondents
Judgment:	25 March 2022

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.

BThe applicants must pay two sets of costs of $2,500, one to the first respondent and the other to the second respondents.

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REASONS

The proposed appeals arise out of a dispute between NZSouthpole Team Ltd, a company with which the applicants were associated, and a customer in relation to bricklaying work. This was resolved by the Disputes Tribunal in favour of the customer. The customer later assigned the judgment debt to the first respondent. NZSouthpole is now in liquidation and the second respondents are the liquidators.
In issue before us are two judgments of the Court of Appeal, the first delivered on 3 November 2021, declining an application for leave to appeal[1] against a refusal by Moore J in the High Court to add Ms Ding as a party to the liquidation proceedings.[2] The second was delivered on 3 December 2021, declining an application for an extension of time[3] to appeal against a costs order made in the High Court.[4]
[1]Ding v James [2021] NZCA 578 (Brown and Courtney JJ) [first CA judgment]. Moore J had earlier also declined an application for leave to appeal the first High Court judgment: Ding v James [2021] NZHC 1189 [second HC judgment].
[2]James v NZSouthpole Team Ltd (in liq) [2021] NZHC 657 [first HC judgment].
[3]Bai v James [2021] NZCA 652 (French and Collins JJ) [second CA judgment].
[4]James v NZSouthpole Team Ltd (in liq) [2021] NZHC 1682 (Moore J) [third HC judgment].
This Court lacking jurisdiction to hear an appeal against a Court of Appeal decision refusing leave to appeal,[5] the application in relation to the judgment of 3 November 2021 is dismissed for want of jurisdiction.
[5]Senior Courts Act 2016, s 68(b). See also Basnyat v New Zealand Police [2019] NZSC 21 at [2].
The convoluted background to the costs order is reviewed in the Court of Appeal judgment of 3 December 2021[6] and more elaborately in the judgments of Moore J.[7] Under the order that is challenged, the applicants are to pay indemnity costs to the first respondent and NZSouthpole.[8]
[6]Second CA judgment, above n 3, at [2]–[12].
[7]See, for instance, the first HC judgment, above n 2, at [4]–[52].
[8]Third HC judgment, above n 4, at [43].
The application for an extension of time was filed on 16 August 2021, at which point the proposed appeal was out of time, but not by much. As well, there were indications of an unsuccessful attempt to file an appeal in time. There was also found…

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 James

Details

AGLC: Bai v James [2022] NZSC 28
Case: [2022] NZSC 28
Decision Date: 25 March 2022

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an application for leave to appeal from the applicants, Caoping Ding and Barry Bai, against two judgments of the Court of Appeal. The applicants sought to appeal against the Court of Appeal's refusal to grant leave to appeal against a decision of the High Court that declined to add Ms Ding as a party to liquidation proceedings, as well as the Court of Appeal's refusal to grant an extension of time to appeal against a costs order made by the High Court. The applicants argued that the Court of Appeal and the High Court did not adequately engage with the substance of their case, and that they should be granted leave to appeal as the matter involved issues of general or public importance.

The Court held that it lacked jurisdiction to hear an appeal against a Court of Appeal decision refusing leave to appeal, and therefore dismissed the application in relation to the first judgment. The Court also found that the proposed appeal did not give rise to a matter of general or public importance, and that the applicants' complaints about the orders were without merit. The Court of Appeal had carefully considered the issues before it, and there was no appearance of a miscarriage of justice.

The Court dismissed the application for leave to appeal, and ordered the applicants to pay two sets of costs of $2,500, one to the first respondent and the other to the second respondents. The applicants' proposed appeal was not based on any new or substantial argument, and was instead premised on a misunderstanding of the issues before the Court of Appeal and the High Court. The Court found that the applicants' conduct, which involved repeated refusals to follow appropriate process and the making of unsubstantiated allegations against others, provided a basis for an award of indemnity costs. The applicants' complaints about the orders were also found to be without merit, and the Court saw no reason to grant an extension of time for the proposed appeal.

Orders