Chen v General Finance Limited - [2023] NZHC 2157

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-548

[2023] NZHC 2157

BETWEEN
LIYUN CHEN

First Applicant

ROYALL FAMILY TRUST
Second Applicant

AND

GENERAL FINANCE LIMITED

Respondent

Hearing: 10 August 2023

Appearances:

Ms Chen in person with Mr Lau (McKenzie Friend) and Mr Chang (Interpeter)

M Martin for the Respondent

Judgment:

10 August 2023

ORAL JUDGMENT OF BECROFT J

[As to leave to appeal]

Solicitors:
Martelli McKegg, Auckland Copy to: Ms L Chen

CHEN v GENERAL FINANCE LTD [2023] NZHC 2157 [10 August 2023]

The application

[1] Ms Liyun Chen applies for leave to appeal a judgment of Gordon J of 31 May 2023. That judgment refused an application for leave to commence proceedings by way of originating application under r 19.5 of the High Court Rules 2016.

[2] In very brief terms, the originating application was sought as a means to challenge the legality of a Property Law Act notice; a proposed sale of a mortgaged property; and, to form the basis of an application for an interim injunction.

[3] At the same time, Ms Chen applied for a stay to execute the judgment. Self- evidently, Gordon J’s judgment refused the leave sought. It made no other directions. With great respect, there was, and is, nothing to stay. But more on that later.

[4] Ordinarily, given that it was her judgment, Gordon J would decide whether an application for leave to appeal to the Court of Appeal would be granted. Her Honour, however, is unavailable and out of New Zealand. It is considered appropriate that a different Judge, in these circumstances, hears this application.

[5] I also note that Ms Chen is self-represented, and that she requires the assistance of a skilled and senior interpreter. She has also been assisted by a McKenzie Friend, a Mr Lau who, as I understand it, is in, or at some stage has been involved in, a relationship with Ms Chen. He has a very good command of English.

Background

[6] By way of very brief background, General Finance Limited (General Finance) provided a single mortgage loan to the Royall Family Trust (the second applicant). Ms Chen was the personal guarantor of the loan.

[7] There is no need for me to set out all the facts. They have been traversed in several previous judgments, including the judgment in respect of which leave to appeal is sought.

[8] Suffice to say, the allegation is that the loan was in default. A Property Law Act notice was issued. There has been a mortgagee sale. The property is the subject of an unconditional Agreement for Sale and Purchase with settlement scheduled for 17 August 2023. That settlement, however, is currently blocked by a caveat lodged by Mr Lau (the McKenzie Friend in Court today). Its removal is the subject of a separate application being heard today in another courtroom in the Auckland High Court.

[9] It is also worth noting that Ms Chen has filed…

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: [2023] NZHC 2157
Decision Date: 10 August 2023

CaseChat Overview and Summary

Liyun Chen, the first applicant, and the Royall Family Trust, the second applicant, are seeking leave to appeal a decision of Gordon J, handed down on 31 May 2023. That decision refused the applicants' application for leave to commence proceedings by way of an originating application under rule 19.5 of the High Court Rules 2016. The originating application was intended to challenge the legality of a Property Law Act notice, a proposed sale of a mortgaged property, and to form the basis of an application for an interim injunction. The applicants also sought a stay to execute the judgment. Gordon J’s judgment declined the leave sought and made no other directions. Chen is self-represented and requires the assistance of an interpreter and a McKenzie Friend.

The legal issues in the case revolve around whether Chen’s application for leave to appeal should be granted, given the high threshold for such applications and the principles established in relevant case law. Chen’s grounds for appeal include claims of erroneous material provided by General Finance, incorrect reliance on mortgage documentation, and a contention that the loan should have been styled as a residential loan rather than a business loan. The court must consider whether there are arguable errors of law or fact, and whether the alleged errors are of sufficient importance to warrant further delay and consideration.

Becroft J thoroughly examined Chen's arguments and found them lacking. The judge identified no errors in Gordon J's decision and concluded that the application for leave to appeal was unlikely to succeed. The court emphasized that originating applications are meant for narrow, focused issues without deep factual disputes, and the current case involved significant factual disagreements. The judge also noted that any factual errors could be addressed in the substantive proceedings, not through an originating application. Ultimately, the application for leave to appeal was dismissed, and full costs were awarded against Chen. The judge advised Chen to consider obtaining legal representation for the substantive hearings, where she could raise all her issues.

Orders