BCH Investments Ltd v Nguy - [2021] NZHC 2730

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000277

[2021] NZHC 2730

UNDER The Companies Act 1993 and the Contract and Commercial Law Act 2017

BETWEEN

BCH INVESTMENTS LIMITED

Plaintiff/Respondent

AND

JESSE SEANG NGUY

Defendant/Applicant

WENBING ZHU (also known as WILSON ZHU)

Third Party

Hearing: (On the papers)

Judgment:

12 October 2021

JUDGMENT OF VENNING J SECOND APPLICATION FOR ADJOURNMENT

This judgment was delivered by me on 12 October 2021 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Glaister Ennor, Auckland (B Vautier)
Great Wall Lawyers, Auckland

Counsel: D P H Jones QC, Auckland

BCH INVESTMENTS LIMITED v NGUY [2021] NZHC 2730 [12 October 2021]

Introduction

[1] In a judgment delivered on 9 September 2021 the Court dismissed the defendant’s application for adjournment of a fixture scheduled to commence on 18 October 2021.1

[2] The defendant subsequently, and late in the afternoon on 8 October 2021 filed a further application seeking to adjourn the fixture. The application is supported by an affidavit by Mr Nguy and a memorandum of counsel, Mr Jones QC.

[3]The plaintiff has filed a notice of opposition and memorandum in opposition.

[4] Mr Jones confirmed to the Registry that he was content for the application to be dealt with on the papers.

[5] The first hurdle facing the applicant/defendant is that this is his second application to adjourn the fixture. Rule 7.52 of the High Court Rules 2016 requires leave before an applicant can apply again for the same or similar order. Leave may only be granted in special circumstances.

[6] The purpose of the rule is to prevent the Court becoming overwhelmed with repetitive applications seeking the same relief. It is to be considered and interpreted in the context of s 56(3) of the Senior Courts Act 2016 which confirms that leave is required to appeal from a decision of this Court on an interlocutory application.

[7] I treat the application as incorporating an application for leave to make a second application. The overriding consideration as to whether there are special circumstances must be the interests of justice test. That is the same test applied to an application for adjournment under r 10.2.

Factual background

[8] The defendant is a barrister and solicitor. A director of the plaintiff acting as an agent for a company yet to be formed instructed the defendant to act as their

1 BCH Investments Ltd v Nguy [2021] NZHC 2360.

solicitor for the purpose of incorporating the proposed company and in respect of matters related to the proposed development of a property at 79–95 Gills Road, Albany. The plaintiff was the company subsequently incorporated.

[9] The defendant acted as solicitor for the plaintiff in relation to the acquisition of the land, and in relation to the following:

(a)the Buyout Agreement,

(b)the Deed of Nomination;

(c)the plaintiff’s purchase of land;

(d)the registration of the land in the name of the plaintiff;…

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.

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Details

Case: [2021] NZHC 2730
Decision Date: 12 October 2021

CaseChat Overview and Summary

The defendant, Jesse Seang Nguy, a former solicitor, applied for a second adjournment of the trial fixture scheduled for 18 October 2021 against the plaintiff, BCH Investments Limited. The plaintiff sued Nguy for breach of contract and negligence relating to the acquisition of a property without Overseas Investment Office (OIO) consent, resulting in a civil penalty. Nguy sought an adjournment on the basis that he had not been able to properly prepare and present his defence. The court found that there were no special circumstances justifying a second adjournment and that the interests of justice did not support vacating the fixture.

The legal issues the court had to decide were whether leave was required for Nguy to make a second application for adjournment and if the application itself should be granted. The court held that Rule 7.52 of the High Court Rules 2016 required leave to make a second application for the same or similar order, which could only be granted in special circumstances. The court also considered whether the application should be granted under Rule 10.2, which requires the court to balance the interests of justice. The court found that Nguy had ample time to prepare for the trial since the fixture date was set in September 2020, and there were no special circumstances to justify a second adjournment. The court also noted that Nguy had not made any effective steps to pursue his third-party claim and that the matters in issue at trial were legal questions that Nguy should be able to address from his personal knowledge.

The court found that Nguy had not shown any special circumstances to justify a second adjournment of the fixture. The court noted that Nguy had been aware of the trial date since September 2020 and had ample time to make arrangements to ensure he was in a position to arrange representation and arrange any witnesses he might have wished to call. The court also found that there was no evidence to suggest that postponing or adjourning the fixture would enable Nguy to instruct other counsel who would be willing to represent him at any adjourned fixture. The court further noted that the matters in issue at trial were legal questions that Nguy should be able to address from his personal knowledge. The court held that the interests of justice did not support vacating the fixture scheduled for 18 October 2021.

The court declined Nguy's application for leave to bring a second application to adjourn the fixture and to have the fixture adjourned. The plaintiff's claim against Nguy would proceed on 18 October 2021. The court also ordered that Nguy was to pay the plaintiff's costs of this application on a 2B basis.

Orders