Chen v Auckland Weihao Investments Limited

[2021] NZCA 14

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA646/2020
 [2021] NZCA 14

BETWEEN	LIYUN CHEN Applicant
AND	AUCKLAND WEIHAO INVESTMENTS LIMITED Respondent

Counsel:	Applicant in person
Judgment: (On the papers)	15 February 2021 at 12.30 pm

JUDGMENT OF BROWN J

The application to review the Deputy Registrar’s decision declining a fee waiver is declined.

____________________________________________________________________

REASONS

Introduction

1. Ms Chen filed an application for an extension of time to appeal against a judgment of the High Court declining an application for an order under s 143 of the Land Transfer Act 2017 that a caveat not lapse.[1]  On 22 December 2020 the Deputy Registrar declined Ms Chen’s application under reg 5(1) of the Court of Appeal Fees Regulations 2001 for a waiver of the $1,100 filing fee on the application.  Ms Chen now seeks a review by a Judge of the Deputy Registrar’s decision.

Ms Chen’s application

[1]Chen v Auckland Weihao Investments Ltd [2020] NZHC 2450.

1. Ms Chen’s application for a fee waiver was made in reliance on the ground in reg 5(2)(b) that the proceeding concerned a matter of general public interest and was unlikely to be commenced or continued unless the fee was waived.  Subclause 4 provides that a proceeding concerns a matter of genuine public interest if it is:

   (a)a proceeding that has been or is intended to be commenced to determine a question of law that is of significant interest to the public or to a substantial section of the public; or

   (b)a proceeding that—

   (i)raises issues of significant interest to the public or to a substantial section of the public; and

   (ii)is an appeal against a judgment, decree, or order given or made in a proceeding commenced by an organisation that, by its governing enactment, constitution, or rules, is expressly or by necessary implication required to promote matters in the public interest.

2. Ms Chen’s fee waiver application specified the following question of law:

   1The director of respondent company in breach of section 10/151 Companies Act 1993.

   2Respondent in breach of AML/CFT 2009 and on the way disposing the property and seriously prejudice the Public Interest as may cause more victim of AML/CFT 2009.  This matter is urgent.

The Deputy Registrar’s decision

1. The Deputy Registrar did not consider that the criteria in either reg 5(4)(a) or (b) were satisfied, stating:

   The proceeding is an appeal of a decision of Gardiner AJ declining your application for an order that a caveat not lapse.  The question of law at issue is whether you have an estate or interest in the property at 285 Murphys Road sufficient to support a caveat.  I do not consider this issue will be of significant interest to the public or to a substantial section of the public.  The issues you raise in your fee waiver application about money laundering and the respondent breaching the Companies Act 1993 are not questions of law that will be determined in this proceeding.

   The alternative criteria in reg 5(4)(b) are:  that the proceeding raises issues of significant interest to the public or to a substantial section of the public; and that the proceeding is an appeal against a decision made in a proceeding commenced by an organisation that is required to promote matters in the public interest.  Neither of these criteria is met here.  The issues raised in this proceeding are not of significant interest to the public or a substantial section of the public, for the reasons explained above in respect of the reg 5(4)(a) criteria.  Further, the appeal is against a decision made in a proceeding commenced by you (your application for an order that the caveat not lapse), not by an organisation of the type described in reg 5(4)(b).

   (Footnotes omitted.)

2. Because Ms Chen ticked the box in the application form which stated that she would start or continue with the proceeding even if the fee was not waived, the Deputy Registrar considered that the second limb of reg 5(2)(b) was also not satisfied.

Discussion

1. As has been held in relation to reviews of decisions concerning security for costs,[2] the review function of a Judge in relation to filing fee decisions is to be exercised de novo.

   [2]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [23].

2. Ms Chen filed a detailed memorandum in support of her application for review. That memorandum focussed on that part of the Deputy Registrar’s decision declining a fee waiver on the ground in reg 5(4)(a). It did not engage with the Deputy Registrar’s conclusion in respect of reg 5(4)(b). Nor did it respond to the Deputy Registrar’s conclusion in reliance on reg 5(2)(b)(ii). Because the two limbs in reg 5(2)(b) are cumulative, the review must fail for the reason given by the Deputy Registrar at [5] above. However I proceed to address the challenge to the Deputy Registrar’s conclusion on reg 5(4)(a).

3. Ms Chen’s memorandum stated:

   Right from start, the sales and purchase signed by the respondent is not valid as the director in breach section 10/151 companies act 1993.  This allegation along enough to be commenced to determine a question of law that is of significant interest to the public or to a substantial section of the public.  If every overseas person who appointed as director of companies in New Zealand and not follow the companies act 1993, then what is the point to write the sections under companies act 1993?  This is fresh new evidence in the appeal.

   The sole shareholder hold 100% of the company share that strictly allowed maximum 25% for any overseas investors.  This allegation along enough to be commenced to determine a question of law that is of significant interest to the public or to a substantial section of the public.  If every overseas person who appointed as shareholder of companies in New Zealand and not follow the companies act 1993, then what is the point to write the rules under companies act 1993?  This is fresh new evidence in the appeal.

   If the sales and agreement signed by the owner is not valid, appellant should under section 138(1)(d)(ii) Land transfer act 2017 being fraud by respondent and this caveat can be sustained as respondent is not legitimate to sign the sales and purchase agreement right from start.  This allegation along enough to be commenced to determine a question of law that is of significant interest to the public or to a substantial section of the public.  This is fresh new evidence in the appeal.

   Respondent involve in money laundering and seriously in breach of AML/CFT 2009 and try to dispose the property “URGENTLY” to public; The property potentially to build over 200 apartments and shops; this is substantial public interest as may involve over 200 buyers, large number of lawyers, large number of real estate agents, Builders and all other related parties that directly/indirectly affect by AML/CFT 2009.  This is fresh new evidence in the appeal.

Reference was also made to correspondence between Ms Chen and the Department of Internal Affairs concerning a complaint of money laundering.

1. The difficulty which Ms Chen fails to confront is the requirement that the proceeding be or intended to be commenced to determine the proposed question of law.  The application to maintain the caveat did not involve the issues upon which Ms Chen now relies in support of her fee waiver application.

2. Although in the caveat itself Ms Chen claimed an interest as purchaser of the property under an agreement for sale and purchase (SPA), as the Associate Judge observed that was not the interest she relied on to sustain the caveat.[3]  In rejecting the application the Associate Judge explained:

   [31]     Ms Chen has not established or even asserted a reasonably arguable case that she remains the purchaser under the SPA and can sustain the Caveat on that basis.  AWIL cancelled the SPA on 21 July 2020 after Ms Chen failed to settle both on the extended settlement date and within the period of the Property Law Act notice issued on 1 July 2020.  Ms Chen has not advanced any credible argument as to why the SPA is not at an end following AWIL’s cancellation.  Her argument is with AWIL’s failure to deliver on the Loan Agreement.  The Loan Agreement was made some months after the SPA and the parties’ performance of their obligations under the SPA is not dependent on performance of the Loan Agreement.  Whatever the case with the Loan Agreement, Ms Chen has not made out a reasonable argument that the SPA was not validly cancelled by AWIL following her failure to settle.  She has, therefore, not established a reasonably arguable case that she has an equitable interest in the Property as purchaser.  The Caveat cannot be maintained on that basis.

   [3]Chen v Auckland Weihao Investments Ltd, above n 1, at [26].

3. Consequently I reach the same conclusion as the Deputy Registrar that the issues Ms Chen raises about money laundering and alleged failure of compliance with the Companies Act 1993 are not questions of law that arise for determination in the proposed appeal.

Result

1. The application to review the Deputy Registrar’s decision declining a fee waiver is declined.