Chen v Dilworth Trust Board - [2015] NZCA 117

IN THE COURT OF APPEAL OF NEW ZEALAND

CA723/2014
[2015] NZCA 117

BETWEEN	KUN WEI CHEN Applicant
AND	DILWORTH TRUST BOARD Respondent

Hearing:	13 April 2015
Court:	Stevens, Wild and Miller JJ
Counsel:	Applicant in person with R Qiu (interpreter) and A Lau (McKenzie friend) C E Harris for Respondent
Judgment:	16 April 2015 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is dismissed.
BThe applicant is to pay the respondent’s costs for a standard application on a band A basis with usual disbursements.

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REASONS OF THE COURT

(Given by Wild J)

Introduction

Mr Chen applies under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal. He filed his application on 11 December 2014. It is opposed by the respondent, the Dilworth Trust Board.
Mr Chen wants to appeal against an order made by Associate Judge Sargisson at the High Court at Auckland on 23 October 2014 adjudicating him bankrupt.[1] He was adjudicated bankrupt because he had committed an available act of bankruptcy in not complying with a bankruptcy notice requiring him to pay a judgment for $430,125.59 entered against him in the High Court at Auckland on 20 March 2012.[2] Mr Chen took no part in the bankruptcy proceeding.

Considerations

Length of delay and reasons for it

[1]Dilworth Trust Board v Chen HC Auckland CIV-20014-404-2039, 23 October 2014.

[2]Dilworth Trust Board v Jack’s Ventures Ltd HC Auckland CIV-2011-404-3312, 20 March 2012.

This application must be decided by applying well established considerations.[3] The first is the length of Mr Chen’s delay in seeking leave to appeal and the reasons for it.
[3]Those set out in My Noodle Ltd v Queenstown Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19] and Barber v Cottle [2010] NZCA 31 at [7].
In the absence of a time limit in the Insolvency Act 2006 for appealing the adjudication order, r 29A applies. Mr Chen had 20 working days after the adjudication order on 23 October 2014 to appeal. That 20 working days period expired on 21 November 2014. Mr Chen had attempted to file an appeal on 28 November 2014, but the notice was rejected by this Court’s Registry which advised Mr Chen he required an extension of time. Mr Chen says he received this advice on 3 December.
Mr Chen mistakenly submits the 20 working days period runs from the date of service on him of the bankruptcy adjudication order. He claims he was served on 7 November (the respondent’s solicitors say he was served on 6 November), so the 20 working days appeal period expired on 7 December 2014, and he attempted to file his notice of appeal within that period.
Even when the appeal period is correctly computed, Mr Chen was only some five working days out of time. That comparatively short period should not stand in Mr Chen’s way if his delay is adequately explained. But it…

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 Chen v Dilworth Trust Board

Details

AGLC: Chen v Dilworth Trust Board [2015] NZCA 117
Case: [2015] NZCA 117
Decision Date: 16 April 2015 at 2.30 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Kun Wei Chen applied for an extension of time to appeal an order made by Associate Judge Sargisson at the High Court at Auckland, which adjudicated him bankrupt for not complying with a bankruptcy notice. The respondent, Dilworth Trust Board, opposed the application. Chen wished to appeal against the bankruptcy order but did not file his appeal within the required 20 working days period. The court had to decide whether to grant Chen an extension of time to appeal.

The court considered several factors in deciding whether to grant Chen an extension of time. These factors included the length of the delay in seeking leave to appeal and the reasons for it, the conduct of the parties, any prejudice to the respondent from the delay, and the prospective merits of the appeal. Chen's delay in filing his appeal was only five working days past the deadline, but he did not provide a satisfactory explanation for the delay. Neither party's conduct affected the decision, except for Chen's unexplained delay. The respondent did not suffer significant prejudice from Chen's delay in seeking to appeal, as the prejudice complained of was unrelated to the delay. Lastly, the court considered the prospective merits of the appeal. Chen's proposed appeal had no prospect of success as it was meritless, and there was no point in granting an extension of time to allow a meritless appeal to proceed.

The Court of Appeal dismissed Chen's application for an extension of time to appeal, and ordered him to pay the respondent's costs for a standard application on a band A basis with usual disbursements.

Orders