Chen v Auckland Weihao Investment Limited
[2023] NZHC 3134
•8 November 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-1236
[2023] NZHC 3134
BETWEEN LIYUN CHEN
Plaintiff
AND
AUCKLAND WEIHAO INVESTMENT LIMITED
First Defendant
MOUNTFORT ESTATE AGENTS LIMITED
Second Defendant [Struck out]
(Continued overleaf)
Hearing: On the papers Appearances:
Ms Chen, Plaintiff in Person
DK Wilson for the First, Third and Fourth Defendants
S Lucas and A Beattie for the Second Defendant (Struck Out) SWM Piggin for the Intended Sixth and Seventh Defendants (Joinder declined)
H Twomey and M Robertson for the Intended Eighth and Ninth Defendants (Joinder declined)
SC Dench for the Intended Tenth and Eleventh Defendants (Joinder Declined)Judgment:
8 November 2023
JUDGMENT OF ASSOCIATE JUDGE SUSSOCK
This judgment was delivered by me on 8 November 2023 at 4.00 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
CHEN v AUCKLAND WEIHAO INVESTMENT LIMITED [2023] NZHC 3134 [8 November 2023]
NENGYI CHEN
Third Defendant
IVY CHAOYUN CHEN
Fourth Defendant
ZUNLIN CHEN
Intended Fifth Defendant [No evidence of service]
M & L ASSOCIATES LIMITED
Intended Sixth Defendant [Leave to join declined by Associate Judge Andrew on 7 October 2021]
LI WANG
Intended Seventh Defendant [Leave to join declined by Associate Judge Andrew on 7 October 2021]
BIBIANA LEE
Intended Eighth Defendant [Leave to join declined on 31 August 2021 by Gault J]
LOO & KOO
Intended Ninth Defendant [Leave to join declined in this judgment 8 November 2023]
DAVID WILSON
Intended Tenth Defendant [Leave to join declined by Associate Judge Sussock on 22 December 2021]
RAYMOND WALKER
Intended Eleventh Defendant [Leave to join declined by Associate Judge Sussock on 22 December 2021]
Introduction
[1] This judgment determines eight outstanding applications on the papers. The applications are referred to as applications 1, 4, 5, 6, 7, 8, 9 and 10 in the table at [5] of my minute dated 7 July 2023.
[2] The minute was issued as progress in this proceeding had stalled. At the time of the minute there were outstanding filing fees still to be paid in respect of a number of the applications. Directions were made requiring the plaintiff to confirm by way of memorandum whether she wished to proceed with all of the applications and requiring her to pay the outstanding filing fees. No memorandum was filed on behalf of the plaintiff in the time required but the outstanding filing fees were eventually paid. A case management conference was also allocated, for which the date and time was adjusted to accommodate the plaintiff (following memoranda being filed). Unfortunately, the plaintiff still did not attend.
[3] Directions were made following the conference requiring the plaintiff to file and serve submissions in support of the applications that still required determination and in response to the costs memoranda filed in respect of the original decisions. A date by which submissions were required to be filed in response was directed, with the minute recording that decisions would then be made on the papers.1
[4] No submissions were filed by the plaintiff in support of her applications. Submissions have been received in response on behalf of the intended parties as recorded below.
[5] Given the multiple applications, I am dealing with them all together in this judgment for the sake of efficiency. In addition, I consider the position on costs for both the original applications and the applications for leave to appeal, to set aside and to stay.
1 Minute of Associate Judge Sussock dated 24 August 2023.
Background
[6] On 16 October 2019, Ms Chen entered into a sale and purchase agreement (SPA) with Auckland Weihao Investment Ltd (AWIL) to purchase a property at 285 Murphys Road, Flat Bush, Auckland (the Property). The purchase price was
$10.8 million. The settlement date was to be 15 June 2020. Ms Chen paid a 10 per cent deposit of $1.08 million.
[7] The parties were legally represented. Ms Bibiana Lee from Loo & Koo acted as AWIL’s solicitor.
[8] There was no finance condition in the SPA, but Ms Chen alleged that the vendor’s real estate agent, Mountford Estate Agents Limited, knew of the proposed involvement of Ms Chen’s father and the refinancing of a property in Takanini in order to fund the purchase.
[9] Due to COVID-19, Ms Chen’s father was unable to travel to New Zealand from China and therefore could not arrange financing.
[10] On 11 June 2020 the settlement date was extended by one week to 22 June 2020. In mid-June 2020 Ms Chen arranged finance of $7.5 million.
[11] On 22 June 2020 AWIL agreed to provide vendor finance of $3 million for three months on the condition that a second mortgage would be secured over the Property and other properties. Ms Chen nominated LC1521319 Development Co Ltd to purchase the Property.
[12] On 24 June 2020 AWIL’s solicitors sent Ms Chen’s solicitors documentation for settlement, and a loan agreement for the vendor finance to be signed (by the nominee as borrower and by another company and Ms Chen as guarantors). The same day Ms Chen’s solicitors returned the signed loan agreement. Ms Chen’s solicitors also provided their e-dealing number.
[13] On 25 June 2020 AWIL’s solicitors advised Ms Chen’s solicitors that they had signed and certified the transfer on the e-dealing and gave undertakings to Ms Chen’s solicitors.
[14] The same day Ms Chen’s solicitors forwarded a deed of priority and subordination to AWIL which would have prevented AWIL from being paid or enforcing its security until the first mortgagee was fully paid. AWIL refused to agree and requested an amendment to the deed. No agreement was reached.
[15]On 26 June 2020 Ms Chen lodged a caveat over the Property.
[16] AWIL was willing to agree to defer settlement on terms. Discussions followed but no agreement was reached. On 1 July 2020 AWIL served a settlement notice.
[17] On 17 July 2020 Ms Chen commenced proceedings against AWIL seeking a refund of her deposit and damages for wrongful repudiation of the loan agreement. The proceeding was served on AWIL on 19 July 2020.
[18] On 21 July 2020 AWIL gave notice of cancellation of the SPA. The SPA was cancelled either as a result of this notice or Ms Chen’s earlier service of the proceeding.
[19] On the same day AWIL also applied to lapse the caveat. Court proceedings in relation to that caveat,2 a further caveat,3 and leave to lodge a further caveat followed.4 Orders were made in the third decision preventing Ms Chen from lodging any further caveats without the permission of the High Court.5
[20] Relevantly, in the second of the caveat decisions, the Court held that Ms Chen had not shown an arguable case for being able to cancel either the SPA or the loan
2 Chen v Auckland Weihao Investments Ltd [2020] NZHC 2450, (2020) 21 NZCPR 409 [First Caveat Decision].
3 Chen v Auckland Weihao Investment Ltd [2021] NZHC 156, (2021) 21 NZCPR 826 [Second Caveat Decision].
4 Chen v Auckland Weihao Investment Ltd [2021] NZHC 1240, (2021) 23 NZCPR 106 [Third Caveat Decision].
5 At [34].
agreement and that there was nothing to show an arguable case for either breach of contract by AWIL or any claim for misrepresentation.6
[21] The first of the applications considered in this judgment is the joinder application for the intended ninth defendant, Loo & Koo. The remainder are for leave to appeal, to set aside or to stay four separate judgments striking out the second defendant7 and refusing joinder of the intended sixth and seventh,8 eighth9 and tenth and eleventh defendants.10
[22]I consider each application below.
Application 1 — interlocutory application to join intended ninth defendant
[23] The plaintiff filed an interlocutory application to join the intended ninth defendant, the law firm Loo & Koo, and intended tenth and eleventh defendants on 8 June 2021. The application to join the intended tenth and eleventh defendants has been determined and is discussed further below.11
[24] At the time the application was filed, Ms Chen’s application to join a solicitor from Loo & Koo, Ms Bibiana Lee, as the eighth defendant had been heard but not yet determined. Gault J made directions in his minute dated 1 July 2021 that the intended ninth defendant was not required to file a notice of opposition to the joinder application until after the issue of his judgment determining joinder of the eighth defendant.
[25] Gault J declined joinder of the eighth defendant, Ms Lee, and ordered costs to be paid on a 2B basis by Ms Chen.12 Ms Lee’s firm, Loo & Koo, the intended ninth defendant, then filed its notice of opposition as directed. In my 7 July 2023 minute I directed Ms Chen to confirm that she wished to proceed with this application, encouraging her to take legal advice before doing so and to consider the very real prospect of an adverse costs award if she was not successful in the application.
6 Second Caveat Decision, above n 3, at [23].
7 Chen v Auckland Weihao Investment Ltd [2021] NZHC 2271 [Mountfort Decision].
8 Chen v Auckland Weihao Investment Ltd [2021] NZHC 2683 [M & L and Wang Decision].
9 Chen v Auckland Weihao Investment Ltd [2021] NZHC 2247 [Lee Decision].
10 Chen v Auckland Weihao Investment Ltd [2021] NZHC 3598 [Wilson and Walker Decision].
11 Wilson and Walker Decision, above n 10.
12 Lee Decision, above n 9.
[26] Although Ms Chen filed memoranda in relation to the timing of the case management conference, she did not confirm that she wished to proceed with the application as directed. However, she paid the outstanding filing fees for the remaining applications and did not advise that she wished to withdraw this application. I determine the application on the presumption that she wishes to proceed.
Relevant legal principles
[27] Rule 4.56 of the High Court Rules 2016 provides for the striking out and adding of parties. It provides a broad discretion to join a party if they:
(a)ought to have been joined; or
(b)the party’s presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding.
[28] The grounds on which the ninth defendant opposes joinder include that its presence before the court is not necessary to adjudicate and settle all matters before the Court, that the plaintiff has failed to show there is a tenable cause of action against the intended ninth defendant, that there is no evidence before the Court that would allow the Court to determine that the intended ninth defendant ought to have been joined, and issue estoppel.
[29] As Gault J did in the Lee Decision, I focus on the third of these grounds: that there is no tenable cause of action. The approach to strike-out applications on the ground of no reasonably arguable cause of action is therefore relevant. The principles are well established, as set out in Attorney-General v Prince,13 and endorsed by the Supreme Court in Couch v Attorney-General.14
[30] For the purposes of strike out, pleadings of fact are presumed to be true. Importantly for both this application and the applications considered below, the factual allegation that Mr Nengyi Chen, AWIL’s sole director and the third defendant in this proceeding, did not reside in New Zealand is assumed therefore to be true for the
13 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
14 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
purposes of this application. The question for the Court is whether any tenable claims can be made against Loo & Koo, even if Mr Chen did not reside in New Zealand.
[31] Loo & Koo is the law firm that Ms Lee worked at. Although the pleading being considered by Gault J in the Lee Decision was an earlier version of the statement of claim, dated 13 April 2021, the claims considered in the Lee Decision are the same claims that Ms Chen makes against the intended ninth defendant, as counsel for the eighth defendant responsibly sought to identify all of Ms Chen’s complaints from the material filed and not just from the statement of claim at that time. Gault J records that the statement of claim is not in orthodox format, reflecting the fact that Ms Chen is self-represented and English is not her first language.15
[32] An amended statement of claim was filed on 14 June 2021, after the hearing of the joinder application in respect of Ms Lee but before Gault J’s judgment was issued. The pleading against the intended ninth defendant in the amended claim mirrors part of the pleading against the eighth defendant. There appear to be additional paragraphs in respect of the eighth defendant although they appear to relate to the same claims. The pleading against the intended ninth defendant, directly quoted, is as follows:
PLAINTIFF FIRST GROUND AGAINST 9th DEFENDANT — misleading
and deceptive conduct, as counsel for 1st defendant, 9th defendant did not check the ID of 3rd defendant whether 3rd defendant is legitimate Director/shareholder of 1st defendant. 9th defendant as counsel for 1st defendant mislead the Judges under CIV-2020-404-1200; CIV-2020-404- 1236; CIV-2020-404-2370; CIV-2020-404-1760 that 3rd defendant “He (Mr
Chen) had returned to China before the COVID-19 pandemic (year 2020) and
has stayed there since (from judgment CIV-2020-404-2370 dated 10.2.2021.” The Judgment of the Court will be published to public and the misleading action by 9th defendant is absolutely prejudice the public/plaintiff interest.
- In addition, 9th defendant transferred 370 Ormiston rd to DDL development limited in 2020 while 1st defendant in breach section 10/151 companies act 1993 rather refer to a liquidator approved by the court. This is misleading and deceptive conduct to public including plaintiff.
- 9th defendant required by law under AML/CFT 2009 to do the customer Due Diligence where 3rd defendant as director of 1st defendant is not New Zealand residence and not comply under “The person acting on behalf of company must be a properly authorised representative”. In other words, the settlement notice dated 1.7.2020 issued by 8th defendant is misleading to plaintiff and to court and public after recorded in the Judgments in this court.
15 Lee Decision, above n 9, at [28].
- 9th defendant in breach LINZ Rule, Under LINZ handbook 1.1.1 “A practitioner must take reasonable steps to ensure the client providing authority has legal capacity to do so”. In this matter 3rd defendant has no legal capacity to sign Authority and Identity as at 16.7.2020 as overseas person to lapse plaintiff’s caveat no 11786226.1 and 11868720.1 as at 22.12.2020 as counsel for 1st defendant in this court.
[33] The pleading therefore still centres on the same claims considered by Gault J in respect of the eighth defendant,16 being that the intended ninth defendant:
(a)breached (or aided a breach) of ss 10 and 151 of the Companies Act 1993 relating to directors;
(b)breached (or aided a breach) of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML/CFT Act);
(c)engaged in misleading and deceptive conduct and assisted counsel in misleading the Court;
(d)acted in concert with other defendants to harm Ms Chen; and
(e)e-dealing or breach of LINZ certification requirements.
[34]I consider each of these below.
Sections 10 and 151 of the Companies Act 1993
[35] Section 10 of the Companies Act relevantly provides that a company must have at least one director that lives in New Zealand. Section 151 provides for the qualifications of directors but does not disqualify those living outside New Zealand.
[36] The question for determination is whether, assuming there is a breach of s 10, such a breach provides the basis for a claim against Loo & Koo. Gault J considered, in relation to what was essentially the same claim against Ms Lee, that it did not follow from a breach of s 10 by AWIL that Ms Lee aided or otherwise became a party to this
16 Lee Decision, above n 9 at [31].
breach.17 His Honour further held that a breach of s 10 did not give rise to a private action against Ms Lee by a counterparty to a transaction with AWIL:18
To succeed in an action for a breach of statutory duty, a plaintiff must establish that the statute in question creates a duty enforceable by private action. Whether an enactment gives rise to a cause of action for breach of statutory duty is a question of statutory construction. There is no indication of a legislative intention that third parties entering into contracts with a company are an identifiable class that s 10 was intended to benefit.
(footnotes omitted).
[37] The same reasoning applies in relation to the intended ninth defendant, Loo & Koo. Furthermore, as for Ms Lee,19 Loo & Koo would not be found to owe a duty of care to Ms Chen to ensure AWIL complied with s 10 or to tell Ms Chen if AWIL did not.
[38] Finally, a breach of s 10 would not invalidate the sale and purchase agreement.20 As Associate Judge Bell said in the second of the caveat decisions, even if there were a breach, AWIL would have remained in existence and could appoint agents to carry on business on its behalf, including entering into contracts to sell property. In that decision, Associate Judge Bell stated:21
Notwithstanding that a company's sole director was outside New Zealand, the company remained in existence and could appoint agents to carry on business on its behalf, including entering into contracts to sell property.
[39] Ms Chen appears in the applications filed for leave to appeal to challenge reliance on Associate Judge Bell’s decision on the basis that the case he refers to in making the above statement, YL NZ Investment Ltd v Ling, can be distinguished because the company in that case had directors who resided in New Zealand at various times whereas in this case the director of AWIL had not resided in New Zealand since May 2015.22 However, although Associate Judge Bell does refer to the temporary nature of the breach in YL NZ Investment Ltd, his analysis does not appear to depend
17 At [38].
18 At [40].
19 At [41].
20 At [39].
21 Second Caveat Decision, above n 3, at [29]; citing YL NZ Investment Ltd v Ling [2017] NZHC 1793, (2017) 28 NZTC 23-026.
22 YL NZ Investment Ltd v Ling, above n 22.
on that. He instead states that although a breach of s 10 may give grounds for a liquidation application under the Companies Act, the company does not cease to exist in the meantime, even once a liquidation application is filed, and would not invalidate contracts entered into by the company.23
AML/CFT Act 2009
[40] The claim includes an allegation that Loo & Koo was required to complete customer due diligence under the AML/CFT Act. This is correct but the AML/CFT Act does not require directors to live in New Zealand nor for a reporting entity to identify any breach of s 10 of the Companies Act. Furthermore, no duty could exist to disclose to Ms Chen a breach of the AML/CFT Act as disclosure would be an offence.24
[41] In addition, for the reasons discussed above, AWIL remains in existence even if s 10 is breached and is able to act through agents; it would not have prevented the sale of the Property.
[42] Gault J had no difficulty holding that neither Ms Lee nor Mountfort owed Ms Chen a duty to ensure compliance with the AML/CFT Act.25 The case against Loo & Koo is the same and I agree that there is no prospect that such a duty would be owed.
Misleading and deceptive conduct
[43] Ms Chen alleges that the intended ninth defendant, as counsel for the first defendant, misled the court resulting in a statement in Associate Judge Bell’s decision on the second caveat that “[Mr Chen] had returned to China before the COVID-19 pandemic and has stayed there since.”26 Ms Chen appears to say that Mr Chen had not been in New Zealand since May 2015 so it is not correct to say that he returned to China before the COVID-19 pandemic. There are a number of issues with any claim for misleading and deceptive conduct based on this representation to the Court,
23 Second Caveat Decision, above n 3, at [39].
24 Anti-Money Laundering and Countering Financing of Terrorism Act 2009, pt 3 sub-pt 3.
25 Lee Decision, above n 9, at [43]; Mountfort Decision, above n 7, at [27]–[33].
26 Second Caveat Decision, above n 3, at [29].
including that this representation was made after the contract had been entered into and become unconditional, issues arising therefore with causation and loss.
[44] Furthermore, even if Mr Chen had not been in New Zealand since May 2015 as Ms Chen says, it would not change the position as far as validity of the contract or other actions of the company. As referred to above at [38], Associate Judge Bell’s decision in the second of the caveat decisions makes this clear.
[45] The difference in the factual position between this case and YL NZ Investment Ltd, referred to by Associate Judge Bell, does not affect the fact that AWIL would have remained in existence and could appoint agents to act on its behalf even if it was in breach of s 10 of the Companies Act. Another party could apply to liquidate AWIL if it was in breach of s 10, but such a breach would not invalidate contracts entered into by the company. I agree with that analysis and so do not consider that there is a tenable claim for misleading or deceptive conduct.
Acted in concert with the other defendants to harm Chen
[46] As discussed by Gault J in the Lee Decision, any such allegation would appear to fall under either the tort of unlawful means conspiracy, which would require the primary claims above being tenable, which I have held they are not, or an action in conspiracy to injure, where the sole or predominant purpose was the injury of the plaintiff.27 It is not pleaded, and I agree with Gault J that it could not be responsibly pleaded, that this was the case.28
E-dealing or breach of LINZ certification requirements
[47] In the amended claim, Ms Chen has added a claim for breach of a rule in the LINZ handbook; to take reasonable steps to ensure the client providing authority has legal capacity to do so. Although not pleaded at that stage, Gault J considered this potential claim in the Lee Decision under the heading “E-dealing” as it had been raised in oral submissions. Again, Gault J dismissed this as an untenable claim for a number of reasons, including that even if AWIL’s only director lived outside New Zealand it
27 Lee Decision, above n 9, at [46].
28 At [46].
did not mean the director lacked authority to sign for AWIL or that AWIL lacked legal capacity to give the e-dealing authority.29 Furthermore there was no obligation on Ms Lee to certify that AWIL complied with s 10 of the Companies Act.
[48] The same difficulties with the claim based on the LINZ certification and e- dealing arise in respect of the claim against the intended ninth defendant, Loo & Koo.
Conclusion on joinder of intended ninth defendant
[49] For the reasons discussed above, the pleadings do not disclose a tenable claim against the intended ninth defendant and nor does it appear the pleadings could be amended to do so. Ms Chen’s application for joinder of Loo & Koo as ninth defendant is therefore dismissed
Costs on joinder of ninth defendant
[50] The intended ninth defendant seeks costs on a 2B basis only for the cost of preparing the notice of opposition of $1434 plus the filing fee of $110, amounting to
$1544. I consider this is very reasonable in the circumstances given the additional memoranda that have been filed by the intended ninth defendants. Ms Chen was warned that there could be an adverse costs award made but did not withdraw this application. I therefore order that costs and disbursements are to be paid to the intended ninth defendants on a 2B basis in the amount of $1544.
Application 2 — Application by plaintiff for particular discovery
[51] For completeness, I note that directions will be made in respect of this application at the upcoming case management conference.
Application 3 — Application for leave to appeal judgment of Gault J dated 31 August 2021 striking out claim against second defendant
[52] As recorded in my minute dated 7 July 2023, no application for leave was required to be filed in relation to the decision by Gault J to strike out the claim against the second defendant (the Mountfort Decision). Ms Chen has an automatic right to
29 At [47]–[53].
appeal to the Court of Appeal a decision striking out a claim under s 56(4) of the Senior Courts Act 2016. I recorded that Ms Chen could therefore appeal directly to the Court of Appeal, although she would need to apply for an extension of time.
[53] A filing fee was paid for this application by Ms Chen. I include a direction below for the Registry to repay the filing fee to Ms Chen as she did not take advantage of the suggestion in my 7 July 2023 minute that the amount paid be credited against the other outstanding fees.
Application 4 — Application to stay the judgment of Gault J dated 31 August 2021 striking out claim against second defendant
[54] Submissions in respect of this application have been filed on behalf of the second defendant but not on behalf of Ms Chen. The submissions confirm that no appeal of Gault J’s strikeout decision (the Mountfort Decision) has been filed in the Court of Appeal.
[55] Rule 12(3) of the Court of Appeal (Civil) Rules 2005 provides a power to the court appealed from to stay either the proceeding or the execution of the decision or to grant interim relief pending the determination of an application for leave to appeal or an appeal.
[56] As counsel for the second defendant record in their submissions, a stay of execution of the judgment cannot be justified because to stay the strike-out would have the effect of requiring the second defendant to participate in the proceedings when the Court has determined that “Ms Chen’s statement of claim discloses no reasonably arguable cause of action against Mountfort”.30 As no appeal of that decision has been filed in the Court of Appeal, there is no basis for staying execution of the decision and nor can there be any proper basis for ordering a stay of the entire proceeding under r 12 of Court of Appeal (Civil) Rules. There is an inherent power to order a stay in proceedings, but it is exercised only in exceptional circumstances and there are no such grounds set out by Ms Chen, other than the grounds set out for leave to appeal.
30 Mountfort Decision, above n 7, at [50].
[57] In addition, Ms Chen has filed a memorandum dated 30 October 2023 seeking a direction for the filing of an amended claim. Ms Chen does not therefore appear to seek an order that the whole proceeding be stayed.
Costs on strike out application
[58] In the original strike out judgment, the Mountfort Decision, Gault J ordered that costs were to be paid on a 2B basis by Ms Chen to the second defendant, Mountfort Estate Agents Ltd.31
[59] The second defendant filed a memorandum to fix costs on 14 December 2021. The plaintiff did not file any response. As the plaintiff is self-represented, in my minute of 24 August 2023, following the case management conference on the same date, I directed that the plaintiff was to file any submissions in response to the costs memoranda by 6 September 2023. No submissions have been filed by the plaintiff.
[60] The costs sought by the second defendant include costs for appearing at a hearing of the defended application, step 26 from sch 3 of the High Court Rules, and costs for obtaining judgment without an appearance, step 28. The hearing proceeded in person, rather than without an appearance, and so I include only step 26 but not step 28. The total amount awarded in costs is therefore $8126.32 Disbursements were not expressly awarded by Gault J but they are appropriately claimed. I therefore include an order for disbursements of $500 for filing fees as claimed, bringing the total to $8626.
Costs on stay application
[61] The second defendant seeks costs in respect of the stay application on a 2B basis except in respect of the preparation of written submissions for which they claim
0.5 of a day rather than 1.5 days as allowed for by sch 3. This is because the plaintiff did not file submissions, counsel recording that the time involved was therefore reduced.
31 At [52].
32 I note that the arithmetic in the second defendant’s costs memorandum is incorrect.
[62] Costs are claimed for steps 11, 13, 23 and 24 (at a reduced rate). These all appear appropriately claimed (although I note that the time allocation claimed for step 23 is 0.6 of a day rather than 0.5 as the memorandum states, although the correct amount is claimed). I therefore make an order below for costs of $4302 plus disbursements of $110 for a total of $4412.
Applications 5 and 6 — applications for leave to appeal and to stay judgment of Gault J dated 31 August 2021 declining joinder of the intended eighth defendant
[63] As referred to above, Gault J declined Ms Chen’s application to join the eighth defendant, Ms Bibiana Lee, a lawyer at Loo & Koo who acted as the solicitor for the first defendant (the Lee Decision).33
[64] Ms Chen filed applications for leave to appeal and to stay the Lee Decision. Following my minute of 7 July 2023, Ms Chen paid the outstanding filing fees in respect of these applications but did not then file any submissions.
[65] I discuss the relevant legal principles for granting leave to appeal before considering the grounds on which the application is based.
Relevant legal principles
[66] Section 56(3) of the Senior Courts Act 2016 requires a party to apply for leave to appeal any decision of the High Court made on an interlocutory application except a successful summary judgment or strike out.34
[67] In Greendrake v District Court of New Zealand, the Court of Appeal approved the following statement of principles:35
[6]In Finewood Upholstery Ltd v Vaughan, to which Dunningham J referred to in the leave decision, Fitzgerald J appropriately observed that the requirement for leave to appeal should serve as a filtering mechanism to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the
33 Lee Decision, above n 9.
34 Senior Courts Act 2016, ss 56(3) and (4).
35 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6]–[7]; citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13]; Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17]; and Meates v Taylor [Leave] (1992) 5 PRNZ 524 (CA) at 526.
proceedings in which the orders were made. The following considerations were recognised as relevant on an application for leave to appeal:
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.
[7]This Court in Ngai Te Hapu Inc v Bay of Plenty Regional Council indicated that considerations similar to the principles applicable to applications under the former s 24G of the Judicature Act 1908, as explained in Meates v Taylor [Leave], apply to applications under s 56(5), stating:
We agree that leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.
Is there an arguable error of law or fact?
[68] Both the application for leave to appeal and the application to stay set out identical grounds. Some of the grounds are difficult to follow because Ms Chen speaks English as a second language and is not legally represented.
[69] Ms Chen relies on her affidavits filed in support of the original joinder application.
[70] In addition, Ms Chen has filed an affidavit by Mr Xing, one of her co-lenders. Again, this affidavit is relatively difficult to follow. Mr Xing appears to say that he at first considered that there may be money laundering involved because of the increase in price of the Property, although even that is not clear. Mr Xing asserts that the Property in issue has been on the market since 2015 under “liquidation sales” due to the absenteeism of the owner, referring to a press release from NAI Harcourts (attached to his affidavit and marked “X1”). Mr Xing’s evidence is that “[the] advertisement reminded me that [the] 1st defendant [is] in breach of section 10 Companies Act 1993 and there is a risk for me to lend onto the purchaser/Ms Chen”.
The document annexed however does not confirm that it was a “liquidated sale”, instead referring to “absentee owner liquidates asset”.
[71] Mr Xing further says that he initially thought that Ms Chen and the director of the first defendant, Mr Nengyi Chen, were related as they share the same last name but by 2020 he had confirmed they were not related. He also says that in 2020 he was able to “clear my thoughts of scam of inflate the house price to money laundering”. At that stage Mr Xing says he agreed to act as the second mortgagee of the development loan. Mr Xing’s evidence is new evidence for which leave would need to be granted for it to be admissible on the appeal. This evidence does not appear to be relevant to the grounds for seeking leave to appeal or to the decision reached by Gault J as it does not appear to be relevant to any steps taken by the eighth defendant. Unless it is relevant, leave would not be granted for this evidence to be heard on the appeal.
[72] In her application, Ms Chen refers to Mr Xing’s affidavit as ground one and her earlier affidavits as ground two and then sets out seven further grounds.
[73] In the grounds numbered 3 and 5, Ms Chen alleges that Gault J erred by not considering matters when in fact he did consider them. These include the claims:
(a)that the instruction from the third defendant, Mr Chen, for AWIL should not be effective under the LINZ guidelines (considered by Gault J at [50]); and
(b)that the eighth defendant did not disclose that AWIL was in breach of s 10 to Ms Chen’s solicitors so they could consider whether the plaintiff would continue “the terms and conditions” of the sale and purchase agreement dated 16 October 2019 (considered by Gault J at [41]).
[74] The ground numbered 4 is incomprehensible and Ms Chen has not taken the opportunity given to her to file submissions to explain it, so I do not consider this further.
[75] The ground numbered 6 appears to allege that AWIL and the third defendant may have been in breach of the overseas sale of another property in 2020. This is not relevant to the pleadings in this case.
[76] Grounds 7 and 8 are that Ms Lee is the conveyancing lawyer for AWIL and that she ignored s 10 of the Companies Act and the Overseas Investment Act 2005. Ms Chen includes an extract from Chief Executive of Land Information New Zealand v West Drury Holding Limited discussing when a party will be an “overseas person” under the Overseas Investment Act.36 Gault J held that Ms Chen did not have a tenable claim against Ms Lee even if AWIL was in breach of s 10 of the Companies Act. There is no pleading currently in relation to the Overseas Investment Act so Gault J cannot have made an error of law or fact by not considering it.
[77] Finally in ground 9, Ms Chen alleges Gault J erred by not considering cl 5 of the AML/CFT Act 2009 “Lawyers and Conveyancers Guidelines”, which Ms Chen alleges required Ms Lee to investigate the eligibility of the third defendant to be sole director and shareholder before accepting the engagement from AWIL. Gault J held that even if Ms Lee failed to conduct appropriate customer due diligence in breach of the AML/CFT Act when accepting instructions to act for AWIL, this would not give rise to a tenable claim by Ms Chen against Ms Lee.37 I do not consider that it is arguable that Gault J erred in reaching this view.
[78] I do not consider therefore that Ms Chen has identified any arguable errors of law or fact. Her application for leave to appeal therefore fails at the first hurdle. Even if there had been arguable errors, Ms Chen would still have had to satisfy the Court that the alleged error warranted further delay and that it was in the interests of justice for leave to be granted, satisfying the high threshold for leave.
[79] In the circumstances of this proceeding, particularly where Ms Chen has not filed submissions in support of her application, this would have been a difficult threshold to meet.
36 Chief Executive of Land Information New Zealand v West Drury Holding Limited [2021] NZHC 704 at [9].
37 Lee Decision, above n 9, at [43].
[80] If there is no basis for granting leave for an appeal, there can be no basis for a stay brought on the same grounds.
[81]I therefore decline both applications.
Costs on the original joinder application
[82] Gault J ordered costs on a 2B basis on the original joinder decision.38 A memorandum was filed by the eighth defendant dated 10 November 2021 seeking to fix costs of $11,950. These costs include three memoranda (step 11), three appearances at mentions hearings (step 12), filing the notice of opposition (step 23), preparing submissions (step 24), preparing the common bundle (step 25) and appearing at the hearing (step 26). Disbursements of $110 are also claimed for the filing fee for the notice of opposition.
[83] Ms Chen filed a memorandum in response opposing costs on the basis that she had filed the applications for leave to appeal and to stay and saying that costs ought to be stayed while the judgment is stayed. In addition, Ms Chen submits that costs ought not to be ordered because Ms Lee misled the court.
[84] I have declined the applications for leave to appeal and for stay, so the stay cannot provide a basis for not fixing costs now. Gault J treated the joinder application as an application for strike out and so proceeded on the basis that the facts pleaded in the statement of claim were true.39 These included that the sole director of AWIL, Mr Chen, resided in China at all relevant times so that there was a breach of s 10. The quote referred to in the application is a quote from Associate Judge Bell’s decision on the second caveat,40 as stated at [43] above, not Gault J’s judgment. Even if there was a breach of s 10, Gault J found there was no tenable claim against Ms Lee. In these circumstances there is no basis for not fixing costs against Ms Chen now.
38 At [56].
39 At [26].
40 Second Caveat Decision, above n 3, at [29].
[85] The costs claimed all appear to be justified and there has been no challenge to individual items by Ms Chen. I therefore order that Ms Chen is to pay the eighth defendant $11,950 in costs plus disbursements of $110 for a total of $12,060.
Costs for the applications for leave to appeal and for stay
[86] In addition, the eighth defendant seeks costs on a 2B basis in respect of the applications for leave to appeal and to stay of $5975. This figure is comprised of steps taken in respect of the costs memorandum of 10 November 2021 (0.4 of a day), notice of opposition (0.6 of a day), conference memorandum (0.4 of a day), conference appearance (0.3 of a day),41 submissions (0.4 of a day, as for the filing of a memorandum), sealing orders x 2 (0.2 of a day each). Disbursements of $110 for filing fees for the notice of opposition and a sealing fee of $50 are also sought.
[87] I deduct the amount claimed for the costs memorandum as a matter of consistency as costs have not been claimed by other parties for the costs memoranda filed. I therefore fix costs at $5019 plus disbursements of $160.
Applications 7 and 8 — applications for leave to appeal and stay judgment of Andrew J dated 7 October 2021 declining joinder of intended sixth and seventh defendants
[88] Andrew J (Associate Judge Andrew as his Honour then was) declined the application to join AWIL’s accountants, M & L Associates Ltd and the director of that company, Li Wang, as the intended sixth and seventh defendants.42 The basis of the joinder application was allegedly filing unlawful returns with the Companies Office Registry because the sole director of AWIL did not live in New Zealand contrary to the requirements of s 10 of the Companies Act. Andrew J awarded costs on a 2B basis plus disbursements.43
[89] Following the issue of the M & L and Wang Decision, Ms Chen filed applications for leave to appeal and to stay Andrew J’s decision together with a
41 I note that counsel incorrectly refers to step 12 instead of step 13 of sch 3 of the High Court Rules, however correctly refers to the correct time allocation (0.3 of a day).
42 M & L and Wang Decision, above n 8.
43 At [32].
supporting affidavit by herself relying on the affidavit by Mr Xing, also relied on in respect of the applications in respect of joinder of the eighth defendant.
[90] A notice of opposition was filed on behalf of M & L Associates Ltd and Li Wang opposing both applications. The grounds for opposing the application for leave to appeal include:
(a)The application fails to meet the high threshold for appeal against an interlocutory decision.
(b)The application fails to identify any errors of law or fact sought to be relied on by the appellant, beyond restating the applicant's arguments and/or stating the applicant's disagreement with the judgment.
(c)The application involves no matter of general public importance warranting determination or otherwise sufficient importance to the applicant to outweigh the lack of general precedential value.
(d)There are no circumstances warranting further delay (that is, delay in bringing a final end to the applications and proceedings by the plaintiff against the intended sixth and seventh defendants) and including having regard to the applicant’s further unwarranted delay especially as to her unmeritorious applications for fee waiver and review and her delay or failure to pay filing fees, and general failure to prosecute her alleged claims (which claims are denied).
(e)In all the circumstances the interests of justice will not be served by granting leave.
[91] As I have done in relation to application 5 above, I discuss below whether Ms Chen has established there is an arguable error of fact or law, in accordance with the framework referred to in Greendrake v District Court of New Zealand.44
44 Greendrake v District Court of New Zealand, above n 35, at [6].
Is there an arguable error of fact or law?
[92] The alleged errors set out in the application repeat many of the same alleged errors as are included in the application for leave to appeal the Lee Decision. For the reasons discussed above, I do not consider there are arguable errors of law or fact.
[93] In addition, Ms Chen again says the decision referred to by Associate Judge Bell, YL NZ Investment Ltd v Lin, in reaching the view that a breach of s 10 does not prevent a company appointing agents to act for it, nor does it invalidate contracts entered into by the company, can be distinguished. For the reasons already discussed, it is not arguable that Andrew J erred in law or fact in this regard.
[94] Ms Chen further alleges that if the sixth and seventh defendants had not filed “erroneous returns” and “did what according to law” then AWIL would be in liquidation and “if liquidator put the property on the market, Mr Xing, the lender will come in the 3 million loan despite plaintiff’s father and brother not been able to travel to NZ…” Several of the other grounds continue this theme. These grounds do not however reveal any arguable error of law by Andrew J because they are highly speculative. Furthermore, Andrew J held that even if the sixth or seventh defendants played a role in the alleged breach of s 10 of the Companies Act and failed to carry out due diligence obligations, those acts or omissions do not provide a basis for a tenable cause of action against M & L Associates Ltd or Ms Wang. I do not consider Andrew J erred in this finding.
[95] Ms Chen’s application says Andrew J further erred by considering Mr Lau’s involvement was not appropriate, noting in a later ground that Mr Lau the is plaintiff’s “ex-family member” and that he should be able to help the plaintiff as a McKenzie friend. Andrew J directed in a minute prior to the hearing that Mr Lau was not to act as a McKenzie friend for Ms Chen. The reasons for that are set out in some detail in his judgment.45 Ms Chen has provided no basis for Andrew J erring in this regard other than saying that Mr Lau is an ex-family member and so he ought to be able to assist. This does not provide a sufficient basis for a finding there has been an arguable error of law or fact.
45 M & L and Wang Decision, above n 8, at [33]–[41].
[96] Ms Chen then refers to another proceeding, Mao v Mao, where Associate Judge Smith set aside an earlier summary judgment decision.46 Ms Chen says:
this is the time this court should consider whether this court should make recommendations to abolished (sic);
(a)Section 10 Companies Act 1993;
(b)Overseas Investment Act 2008;
(c)AML/CFT 2009.
[97]These obviously do not identify errors of fact or law.
[98] In this application, I am satisfied that Ms Chen has failed to identify any arguable error of law or fact in Andrew J’s decision, so that her application for leave to appeal again fails at the first hurdle. As set out above, the Court of Appeal confirmed in Greendrake v District Court of New Zealand that even if there is an arguable error, leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.47
[99] Counsel for M & L Associates Ltd and Ms Wang submits the application for a stay can only relate to the costs award as a stay of the decision to decline joinder would mean M & L Associates Ltd and Li Wang would be required to participate in the hearing despite joinder having been declined. Furthermore, counsel submit that in all the circumstances the overall balance of convenience is against the granting of a stay including having regard to the delay, the lack of bona fides of Ms Chen in prosecuting the leave to appeal application and that the enforcement and payment of the interlocutory costs award would not render any proposed appeal nugatory.
[100] As I have now declined the application for leave to appeal there is no basis for a stay of execution of the judgment. Even if Ms Chen were to seek leave to appeal
46 Mao v Mao [2020] NZHC 1216.
47 Greendrake v District Court of New Zealand, above n 35, at [7]; citing Ngai Te Hapu Inc v Bay of Plenty Regional Council, above n 35.
from the Court of Appeal, the enforcement and payment of the costs award would not render any proposed appeal nugatory.
[101]In these circumstances I therefore decline the stay application.
Costs on the original joinder application
[102] A memorandum was filed on behalf of M & L Associates Ltd and Ms Wang seeking 2B costs on the original joinder application to be fixed at $11,113.50 including for appearances at a mentions hearing (step 12) and a conference (step 13), for three memoranda including in response to requests for adjournment of the hearing (step 11), preparing and filing the notice of opposition (step 23), preparing written submissions (step 24), preparing the bundle (step 25), and appearing at the hearing (step 26). Disbursements of $304.68 are claimed for filing fees, photocopying and couriers.
[103] Ms Chen has had several opportunities to file submissions in response but has only done so on the basis that she has filed applications for leave to appeal and for stay. She has again not questioned the 2B costs claimed.
[104] The costs appear appropriately claimed. I note that the application was in the end determined on the papers but the amount claimed for the hearing is 0.25 of a day (step 26) whereas the amount that could be claimed for obtaining judgment without an appearance is 0.3 of a day (step 28). I therefore order below that Ms Chen is to pay 2B costs to M & L Associates Ltd and Li Wang as sought of $11,113.50 plus disbursements of $304.68 for a total of $11,418.18.
Costs on the applications for leave to appeal and for stay
[105] In addition, M & L Associates Ltd and Li Wang claim 2B costs of $5,975 for a costs memorandum (step 11), notice of opposition (step 23), two conference memoranda (step 11) and one appearance (step 12), plus preparation time for sealing both orders (step 29). Disbursements of $210 are also claimed.
[106] These costs are appropriately claimed other than the costs memorandum which I deduct for consistency across these applications.48 The 2B costs awarded are therefore $5019 plus disbursements of $210.
[107] Further costs were sought by the sixth and seventh defendants by memorandum dated 27 October 2023 for the memorandum prepared for, and appearance at, the case management conference originally scheduled for 31 October 2023. That conference was rescheduled to this Friday, 10 November 2023. I acknowledge that a further memorandum was filed but it is short and I make directions below excusing any appearance for the sixth and seventh defendants on 10 November 2023 as a result of this judgment. I do not therefore award any further costs.
Applications 9 and 10 — applications to set aside and stay judgment of Associate Judge Sussock dated 22 December 2021 declining joinder of intended tenth and eleventh defendants
[108] These applications relate to my judgment declining Ms Chen’s application to join David Wilson and Raymond Walker.49 Messrs Wilson and Walker are the solicitors who replaced Ms Lee and Loo & Koo as solicitors for AWIL and the third and fourth defendants, Mr Nengyi Chen and Ms Ivy Chaoyun Chen, when the plaintiff named Ms Lee and Loo & Koo as the eighth and ninth defendants.
[109] Following my judgment, Ms Chen applied to set aside (rather than for leave to appeal) and to stay my judgment. Both applications are headed “Interlocutory application to set aside Judgment dated 22.12.2021” and are largely identical except the orders sought in one are for the judgment to be set aside and the application is said to be made in reliance on rr 12.14 and 15.1 of the High Court Rules and in the other, the order sought is for the judgment to be stayed.
[110] A notice of opposition was filed on behalf of Messrs Wilson and Walker relying on the grounds that the applications do not disclose any grounds for setting aside or staying the judgment.
48 I note that counsel incorrectly refers to step 12 instead of step 13 of sch 3 of the High Court Rules, however correctly refers to the correct time allocation (0.3 of a day).
49 Wilson and Walker Decision, above n 10.
[111] Neither rules 12.14 nor 15.1 of the High Court Rules are relevant to an application to set aside or stay the decision. Rule 12.14 empowers the court to set aside a summary judgment where the applicant did not appear at the hearing and it appears there has been a miscarriage of justice. My decision declining joinder was not a summary judgment decision, so the rule does not apply.
[112] Rule 15.1 empowers the court to strike out all or part of a pleading, but does not allow the court to strike out a judgment if that is what Ms Chen intended.
[113] In the judgment I set out the circumstances leading up to the hearing and record that the plaintiff initially sought an adjournment but this was declined.50 Ms Chen then advised she agreed to the matter being determined on the papers because of the COVID-19 Alert Level 3 restrictions. Facilities were available to attend remotely but on the morning of the hearing Ms Chen advised in additional submissions that she would not be attending and then asked for the matter to be determined on the papers. Where Ms Chen chose not to attend a hearing, there would have to be very special circumstances before she could rely on that non-attendance to set aside the judgment (notwithstanding that, as I have said, r 12.14 does not even apply here). In any event, none of the grounds raised in the applications relate to any unfairness caused by Ms Chen’s non-attendance or provide a basis for alleging there has been a miscarriage of justice.
[114] The grounds set out by Ms Chen refer again to the pleadings included in the statement of defence filed by Messrs Wilson and Walker on behalf of the first, third and fourth defendants which was the only conduct of Messrs Wilson and Walker that appeared to be in issue. I do not consider I erred in law or in fact in finding Ms Chen had no tenable claim against Messrs Wilson and Waller. The claim against Messrs Wilson and Walker was entirely misconceived from the beginning.
[115]There is no basis therefore for setting aside the decision.
[116] The grounds on which a stay is sought are the same as those for the application to set aside. If the decision declining joinder were stayed, then Messrs Wilson and
50 Wilson and Walker Decision, above n 10, at [11].
Walker would be required to continue as parties contrary to the decision reached. As I have not set aside the decision and no application for leave to appeal has been filed (and nor could it be now without leave) there is no basis for a stay.
[117]I therefore decline this stay application.
Costs on the original joinder application
[118] In my judgment declining joinder, I ordered Ms Chen to pay costs on a 2B basis.51 A memorandum was filed on behalf of Messrs Wilson and Walker seeking costs to be fixed at $6,333.50, as set out in a schedule to their memorandum dated 2 August 2023. The costs claimed include costs for an appearance at a case management conference of 0.3 (step 13), for filing and preparing the notice of opposition (step 23), preparing written submissions (step 24) and appearing at the hearing (step 26). No disbursements are claimed but I allow for the filing fee for the notice of opposition as it would have been paid.
[119] No memorandum has been filed by the plaintiff in response to the intended tenth and eleventh defendants’ costs memorandum.
[120] The costs claimed all appear justified. I therefore order Ms Chen to pay costs on a 2B basis of $6,333.50 costs to Messrs Wilson and Walker and disbursements of
$110 for a total of $6,443.50.
Costs on the applications to set aside and to stay
[121] Messrs Wilson and Walker seek costs on a 2B basis on the applications to set aside and stay of $4302 including filing a memorandum for (step 11) and appearance at (step 13) the case management conference, preparing and filing the notice of opposition (step 23), and filing submissions (although only 0.5 rather than 1.5 days, as allowed by step 24, is sought).
[122] These costs all appear justified and reasonable and so I order them below together with disbursements of $110 for the filing fee for the notice of opposition.
51 Wilson and Walker Decision, above n 10, at [55].
Final Note
[123] I agree with counsel for Messrs Wilson and Walker that the plaintiff has now had many opportunities to take advice and use interpreters as required. Her decision to represent herself particularly when she appears to have considerable language difficulties cannot continue to be relied on to justify the repeated filing of applications that are devoid of merit or to excuse non-attendance at hearings, disregard of court directions or failure to make use of the opportunities provided by the court to advance her applications. As counsel submits, this comes at a cost to the respondents and there needs to be a limit to the court’s tolerance of this.
[124] Hinton J, in a postscript to the first judgment in these proceedings in respect of applications for orders for particular discovery against AWIL and seven non-parties and an “application to set aside the settlement notice”, recorded that there was “a lot of money at stake in this proceeding and a desperate need for the plaintiff to engage counsel experienced in cases of this nature”.52 I repeated that call in my decision staying the application by Ms Chen to liquidate AWIL and recorded that continued inappropriate or unnecessary steps may attract increased or indemnity costs awards in the future.53 And I repeat that call again here. The costs orders made below are substantial even though they are made on a 2B basis. Further applications relying on the same bases as have already been dismissed by the court may well justify increased or indemnity costs awards.
Result
Applications
[125]I order:
(a)The plaintiff’s application to join Loo & Koo as the ninth defendant (application 1) is declined.
52 Chen v Auckland Weihao Investment Limited [2020] NZHC 2564 at [30].
53 Chen v Auckland Weihao Investment Limited [2021] NZHC 306 at [67].
(b)The plaintiff’s application to stay Gault J’s decision striking out the plaintiff’s claim against Mountfort Estate Agents Limited (Chen v Auckland Weihao Investment Ltd [2021] NZHC 2271) (application 4) is declined.
(c)The plaintiff’s applications for leave to appeal and to stay Gault J’s decision declining joinder of the intended eighth defendant (Chen v Auckland Weihao Investment Ltd [2021] NZHC 2247) (applications 5 and 6) are declined.
(d)The plaintiff’s applications for leave to appeal and to stay Andrew J’s decision declining joinder of the intended sixth and seventh defendants (Chen v Auckland Weihao Investment Ltd [2021] NZHC 2683) (applications 7 and 8) are declined.
(e)The plaintiff’s applications to set aside and stay Associate Judge Sussock’s decision declining joinder of the intended tenth and eleventh defendants (Chen v Auckland Weihao Investment Ltd [2021] NZHC 3598) (applications 9 and 10) are declined.
Directions
[126]I direct:
(a)The Registry is to organise repayment of the $500 filing fee paid by Ms Chen for the application for leave to appeal Gault J’s decision striking out the plaintiff’s claim against Mountfort Estate Agents Limited (Chen v Auckland Weihao Investment Ltd [2021] NZHC 2271) (application 3) (as Ms Chen had a right to appeal directly to the Court of Appeal (see
[52] above).
(b)Appearances are excused from the case management conference scheduled for 10 November 2023 for the second defendant (now struck out) and the intended sixth, seventh, eighth, ninth, tenth and eleventh defendants (all for whom joinder has been declined)
Costs
[127]I make the following costs orders:
(a)Ms Chen is to pay costs to Loo & Koo on a 2B basis of $1434 plus disbursements of $110 in relation to the application to join Loo & Koo as the ninth defendant.
(b)Ms Chen is to pay costs to Mountfort Estate Agents Limited on a 2B basis:
(i)in relation to the decision striking out the plaintiff’s claim against it (Chen v Auckland Weihao Investment Ltd [2021]
NZHC 2271) of $8126 plus disbursements of $500; and
(ii)in relation to the plaintiff’s stay application of $4302 plus disbursements of $110.
(c)Ms Chen is to pay costs to Bibiana Lee on a 2B basis:
(i)in relation to the decision declining joinder of the intended eighth defendant (Chen v Auckland Weihao Investment Ltd [2021] NZHC 2247) of $11,950 plus disbursements of $110; and
(ii)in relation to the plaintiff’s applications for leave to appeal and stay of $5019 plus disbursements of $160.
(d)Ms Chen is to pay costs M & L Associates Limited and Li Wang on a 2B basis:
(i)in relation to the decision declining joinder of the intended sixth and seventh defendants (Chen v Auckland Weihao Investment Ltd [2021] NZHC 2683) of $11,113.50 plus disbursements of
$304.68; and
(ii)in relation to the plaintiff’s applications for leave to appeal and stay of $5019 plus disbursements of $210.
(e)Ms Chen is to pay costs to David Wilson and Raymond Walker on a 2B basis:
(i)in relation to the decision declining joinder of the intended tenth and eleventh defendants (Chen v Auckland Weihao Investment Ltd [2021] NZHC 3598) of $6,333.50 plus disbursements of
$110; and
(ii)in relation to the plaintiff’s applications to set aside and to stay of $4302 plus disbursements of $110.
Associate Judge Sussock
Solicitors:
Wotton + Kearney, Auckland Robertsons Law, Auckland
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