Bai v James - [2021] NZCA 652

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA506/2021
[2021] NZCA 652

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

Court:	French and Collins JJ
Counsel:	Applicants in person B M K Pamatatau for First Respondent B L Martelli for Second Respondents
Judgment: (On the papers)	3 December 2021 at 10.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is declined.
BThe applicants must pay the respondents costs for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

Mr Bai and Ms Ding, and purportedly NZSouthpole Team Ltd (Southpole),[1] apply under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal a High Court costs order.[2]

Background

[1]NZSouthpole Team Ltd (Southpole) is in liquidation, and Mr Bai and Ms Ding do not have authority to act on its behalf.

[2]James v NZSouthpole Team Ltd (in liq) [2021] NZHC 1682 [High Court costs order].

Ms Ding is the sole director of Southpole, and Mr Bai is the manager.[3]
[3]This case has a complex background. The following summary is taken from the High Court’s substantive judgment to which the costs order relates: James v NZSouthpole Team Ltd (in liq) [2021] NZHC 657 [High Court substantive judgment].
On 2 March 2017, Southpole was hired to do bricklaying by a Mr Sidorov. The bricklaying was done by Mr Bai, and it was of such poor quality that it failed a council inspection. Mr Bai had his licence cancelled.[4]
[4]Mr Bai’s appeal against the decision to cancel his licence was dismissed. See Bai v Registrar of Licensed Building Practitioners [2019] NZDC 6246.
On 26 June 2018, the Disputes Tribunal ordered Southpole to pay Mr Sidorov compensation of $13,556.25 (the judgment debt).
Southpole applied to the Disputes Tribunal for a rehearing, but its application was out of time, and the Disputes Tribunal declined a rehearing. Southpole appealed to the District Court, which rejected the appeal (District Court decision).
In February 2020, Mr Sidorov assigned the judgment debt to Mr James, the first respondent. On Mr James’ application, the High Court ordered that Southpole be liquidated (High Court liquidation order). Mr McLennan and Mr Pronk, the second respondents, were appointed as Southpole’s liquidators.
Mr Bai and Ms Ding, purportedly acting for Southpole, attempted to appeal the High Court liquidation order to the Court of Appeal. However, Clifford J issued a minute saying that they had no authority to act for Southpole in liquidation, and that they needed to apply to the High Court to be joined as a party.[5]
[5]NZSouthpole Team Ltd v James CA392/2020, 21 August 2020.
This was followed by further applications and appeals to the High Court. On 30 March 2021, the High Court dealt with all of these matters together (High Court substantive judgment).[6]…

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 [2021] NZCA 652
Case: [2021] NZCA 652
Decision Date: 3 December 2021 at 10.30 am

CaseChat Overview and Summary

Bai and Ding, representing themselves in this matter, sought an extension of time to appeal a costs order made by the High Court. The Court of Appeal, comprising French and Collins JJ, was tasked with determining whether to grant the extension. The primary issue was whether the delay in lodging the appeal and the reasons provided for that delay warranted an extension of time. Other considerations included the significance of the issues raised in the proposed appeal, any prejudice or hardship caused to the respondents, and the conduct of the applicants.

The Court of Appeal found that while the delay was relatively short and the applicants had attempted to appeal, their conduct throughout the proceedings was problematic. They had repeatedly refused to follow proper procedures, made unsubstantiated allegations against others, and showed a disregard for the correct legal process. The applicants' proposed appeal was also found to lack merit, as the issues raised did not meet the threshold for indemnity costs and were not significant enough to warrant an appeal. The Court of Appeal concluded that the interests of justice did not support granting an extension of time for the appeal.

The Court of Appeal declined the application for an extension of time to appeal and ordered the applicants to pay the respondents' costs for a standard application on a band A basis and usual disbursements. This decision emphasised the importance of adhering to legal procedures and the Court's reluctance to condone delays without satisfactory explanations or significant merit in the proposed appeal.

Orders