Chen v Auckland Weihao Investment Ltd

[2020] NZHC 3329

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1236

[2020] NZHC 3329

BETWEEN

LIYUN CHEN

Plaintiff

AND

AUCKLAND WEIHAO INVESTMENT LTD

Defendant

On the papers:
Judgment:	15 December 2020

JUDGMENT OF HINTON J

[FurtherApplication for Leave to Appeal]

This judgment was delivered by me on 15 December 2020 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel: Loo & Koo, Auckland

Copy to: The Plaintiff

CHEN v AUCKLAND WEIHAO INVESTMENT LTD [2020] NZHC 3329 [15 December 2020]

[1]                  On 30 September 2020, I gave judgment dismissing two interlocutory applications by the plaintiff, Ms Chen.1 The defendant, Auckland Weihao Investment Ltd, sought costs in respect of that application. On 9 November 2020, I gave a further judgment awarding costs and disbursements to Weihao Investment in respect of Ms Chen’s interlocutory applications.2 I also dismissed Ms Chen’s application for leave to appeal against my judgment of 30 September 2020.

[2]                  Ms Chen now seeks leave to appeal against my judgment of 9 November 2020. This apparently, so far as I understand her application for leave to appeal dated      26 November 2020, relates to both my refusal to grant leave to appeal and my decision as to costs.

[3]                  So far as my dismissal of Ms Chen’s application for leave to appeal is concerned, if Ms Chen wishes to challenge my judgment of 9 November 2020, she must do so by making an application to the Court of Appeal pursuant to s 56(5) of the Senior Courts Act 2016 – though I note she is now out of time to do that – rather than by filing a further notice of appeal in this Court. Therefore, to the extent Ms Chen now seeks leave from this Court to appeal against my refusal of leave to appeal in my judgment of 9 November, her application is dismissed for want of jurisdiction.

[4]                  So far as Ms Chen seeks leave to appeal against my determination of costs, as the costs award was made in relation to a decision against which an appeal can be brought only with leave, the application is governed by s 56(3) of the same Act (as was the application for leave to appeal I dismissed previously).3 As follows, to obtain leave she must demonstrate that the further delay associated with allowing an appeal would be warranted. In particular, she must demonstrate that my judgment contains an arguable error of general or public importance that requires determination, or

1      Chen v Auckland Weihao Investment Ltd [2020] NZHC 2564.

2      Chen v Auckland Weihao Investment Ltd [2020] NZHC 2936.

3      Reid v New Zealand Fire Service Commission [2010] NZCA 133, (2010) 19 PRNZ 923. Compare costs decisions in relation to substantive determinations appealable as of right, which are themselves appealable as of right: Tower Insurance Ltd v Kilduff and Veritas (2012) Ltd [2019] NZCA 82 at [17].

otherwise is of sufficient importance to the applicant to outweigh the lack of any general or precedential importance.4

[5]                  As noted, as with the other documents she has filed in this proceeding, Ms Chen’s application for leave to appeal is not easy to understand. It appears she says Weihao ought not to have received a costs award for the same reasons she says I was wrong to dismiss her interlocutory applications. That is to say, she says she ought not to have to pay Weihao’s costs on her unsuccessful interlocutory application as she ought in fact to have succeeded. That, plainly, is not an arguable error so far as my costs judgment is concerned. At best, it reflects Ms Chen’s lack of understanding of matters of procedure and reinforces the need for her to obtain counsel, that I have identified previously. At worst, it could be construed as an abusive collateral attack on my previous judgments.

[6]                  As follows, Ms Chen has not established that my costs decision of 9 November 2020 contains an arguable error. For this reason, the balance of her interlocutory application dated 26 November 2020 is dismissed.

[7]                  Weihao has not yet taken any steps to respond to Ms Chen’s application. For the above reasons, I did not consider it necessary to wait for its response before proceeding to judgment. Accordingly, I make no award as to costs.

Hinton J

4      Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [9], citing A v Minister of Internal Affairs [2017] NZHC 887. See also [10]-[14]. See also Ngai Te Hapu Incorporated v Bay of Plenty Regional Council [2018] NZCA 291 at [17]; and Western Joinery Ltd v Commissioner of Inland Revenue [2017] NZHC 3297 at [9], citing Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.