Ding v James
[2021] NZCA 578
•3 November 2021 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA356/2021 [2021] NZCA 578 |
| BETWEEN | CAOPING DING |
| AND | THOMAS EDMUND WILLIAM JAMES |
| Court: | Brown and Courtney JJ |
Counsel: | Applicants in Person |
Judgment: | 3 November 2021 at 10.30 am |
JUDGMENT OF THE COURT
The application for leave to appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brown J)
Introduction
A debt claim in the Disputes Tribunal in respect of bricklaying work undertaken by NZSouthpole Team Ltd (NZSouthpole) eventually culminated in the company being placed into liquidation. The litigation was described in the High Court judgment, the subject of the present application for leave to appeal, in this way:[1]
… what was a reasonably straightforward claim and counterclaim before the Disputes Tribunal … has evolved into a bewildering series of appeals and applications involving the [Waitakere] District Court, this Court and the Court of Appeal.
[1]James v NZSouthpole Team Ltd(in liq) [2021] NZHC 657 [Substantive decision] at [1] (footnotes omitted).
In that judgment Moore J ruled on several matters including an application by Ms Ding, the sole director of NZSouthpole, to be joined as a party in the liquidation proceedings. In a subsequent judgment Moore J declined Ms Ding’s application under s 56(3) of the Senior Courts Act 2016 (SCA) for leave to appeal to this Court on that issue.[2]
[2]Ding v James [2021] NZHC 1189 [Leave decision].
Although the tenor of the papers filed in this Court by Ms Ding and Mr Bai, an employee of NZSouthpole, signals a desire to appeal against several aspects of the substantive decision, as we explain below we consider that the only matter that is properly before us at this juncture is an application under s 56(5) of the SCA for leave to appeal the Judge’s refusal to add Ms Ding as a party to the liquidation proceedings. Mr Bai has no standing in relation to that matter.
Relevant background
On 26 June 2018 the Disputes Tribunal ruled that bricklaying work undertaken by NZSouthpole was not fit for purpose and judgment was entered against the company in the sum of $13,556.25. On 17 September 2018 NZSouthpole filed out of time an application for a rehearing. The Tribunal declined the application on 28 September 2018.
On 26 October 2018 NZSouthpole filed an appeal in the District Court against the Tribunal’s decision declining leave to apply for a rehearing out of time. Then on 11 January 2019 NZSouthpole filed in the District Court what appeared to be a second application for a rehearing. A District Court Judge’s minute of 14 October 2020 purported to address both applications, albeit somewhat confusingly.[3]
[3]The delay of some 20 months in doing so is unexplained.
Having taken an assignment of the judgment debt, Mr James served a statutory demand on NZSouthpole which took no steps to either satisfy the demand or apply to set it aside. On 23 March 2020 an application to liquidate NZSouthpole was filed in the High Court and a liquidation order was made on 3 July 2020.
Having first attempted to file an appeal in the High Court at Auckland which was not accepted, NZSouthpole, apparently through the medium of Mr Bai, then filed a notice of appeal in this Court as CA392/2020. In a minute dated 21 August 2020 Clifford J noted that, because NZSouthpole was in liquidation, the directors no longer had authority to act on its behalf.[4] The Judge suggested that the correct process would be for the director to file an application in the High Court to be joined as a party to the liquidation proceedings and that once such order had been made, the director could file an appeal in this Court.[5] The Judge attached to his minute a copy of this Court’s judgment in Norman & Ors v ANZ National Bank Ltd.[6]
[4]NZSouthpole Team Ltd v James CA392/2020, 21 August 2020 (Minute of Clifford J).
[5]At [6].
[6]Norman & Ors v ANZ National Bank Ltd [2012] NZCA 356.
On 7 September 2020 Ms Ding filed an application in the High Court seeking orders that the liquidators’ report not be adopted, for recall of the liquidation order and for her joinder as a party to the liquidation proceedings. On 16 October 2020 these matters came before Associate Judge Andrew who observed that an application pursuant to s 250 of the Companies Act 1993 to terminate the liquidation might be more appropriate in the circumstances. Following this it appears that a s 250 application and an appeal against the District Court minute of 14 October 2020 were also filed. A hearing of the various applications and the appeal was held on 24 February 2021.
The High Court judgments
In the substantive judgment Moore J made the following rulings:[7]
(a)Ms Ding was not permitted to appear and represent NZSouthpole in the proceedings;
(b)the appeal against the District Court minute of 14 October 2020 was dismissed;
(c)the application for recall of the liquidation order was declined;
(d)the application to terminate the liquidation under s 250 of the Companies Act was declined; and
(e)the application to add Ms Ding as a party to the liquidation proceedings was declined.
[7]Substantive decision, above n 1, at [100]–[104].
Ms Ding filed the application for leave to appeal referred to at [2] above. Applying the principles applicable to applications for leave to appeal to this Court from interlocutory decisions, Moore J concluded that Ms Ding’s application lacked merit and did not meet the requisite standard justifying a grant of leave to appeal. Leave to appeal was declined.[8]
The intended appeal
[8]Leave decision, above n 2, at [21].
On 21 June 2021 Ms Ding and Mr Bai filed in this Court a document giving notice of their intention to appeal against the judgments of Moore J of 30 March 2021 and 27 May 2021.[9] The scope of the contemplated appeal is apparent from the terms of the judgment which sought from this Court:
(1)Add the appellant to the liquidation team. The appellant can continue to rehearing in Auckland Waitakere District Court (this is the source of this unjust case). And [t]he appellant can apply in the Court of Appeal for an application for the substance of the case other than an intermediate application, avoid the unfair chain of the Auckland High Court, and jump out of this trap. And [t]he appellant will be able to stop multiple illegal acts by the liquidator. This is important.
(2)To try and hear the substantial contents of the two cases CIV-2020-404-000506 and CIV-2020-404-003212.
(3)To dismiss or cancel the judgment of the Auckland High Court on March 30, 2021.
(4)To dismiss or cancel the liquidation judgment of the Auckland High Court.
(5)Investigate the responsibility of the Auckland High Court liquidators, the Auckland High Court lawyers and Auckland High Court staff for making unjust cases.
(6)The Respondent compensates the Appellant for losses.
[9]Mr Bai was described in the substantive judgment as the manager of NZSouthpole Ltd. He was not a party in the High Court proceedings.
Before turning to address the present application, it is necessary first to explain the status of the other matters referred to in the notice of appeal.
Although NZSouthpole (in liq) is not named as a respondent to the current application, we infer from Ms Ding’s desire to be added “to the liquidation team” that she continues to seek permission to represent NZSouthpole. The refusal of that application by Moore J was an interlocutory decision. In order to challenge that decision, Ms Ding was required to apply to the High Court under s 56(3) for leave to appeal to this Court within 20 working days. She did not do so. Consequently this Court does not have jurisdiction under s 56(5) to entertain an original leave application.
The High Court ruled that it did not have jurisdiction to entertain Ms Ding’s second appeal from the District Court minute.[10] Section 50 of the Disputes Tribunal Act 1988 provides for only a single right of appeal to the District Court from a decision of the Disputes Tribunal. This Court has no jurisdiction to entertain what would be in effect a third appeal.
[10]Substantive decision, above n 1, at [62]–[63].
In Sax v Campbell this Court ruled that decisions on recall applications are interlocutory applications for the purposes of the SCA.[11] Consequently the decision of Moore J to decline the application for recall of the liquidation order was an interlocutory judgment. Hence it was necessary for leave to appeal to be sought from the High Court in the first instance.[12] That not having occurred, this Court does not have jurisdiction to hear an original application for leave.
[11]Sax v Campbell [2021] NZCA 346 at [2].
[12]Senior Courts Act 2016, s 56(3).
By contrast, the decision declining the application to terminate the liquidation under s 250 of the Companies Act was not an interlocutory judgment. We consider that an appeal lay to this Court as of right. However the notice of appeal was not filed until 21 June 2021, some 36 working days out of time. In order to advance that appeal Ms Ding must apply under s 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal. Pending receipt of such an application and submissions from the parties on that issue, that matter cannot be further advanced at this time.
The remaining matter, the challenge to the refusal to add Ms Ding as a party to the liquidation proceedings, is the subject of the application for leave under s 56(5) of the SCA.
Principles governing appeals from interlocutory judgments
The considerations relevant to applications for leave to appeal from interlocutory judgments are now well established:[13]
(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 of 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.
[13]Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].
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],[14] apply to applications under s 56(5) of the SCA stating:[15]
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.
Analysis
[14]Meates v Taylor [Leave] (1992) 5 PRNZ 524 (CA) at 526.
[15]Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].
In the notice of appeal and in the detailed memorandum in reply to Mr Pamatatau’s submissions on behalf of Mr James, Ms Ding mounts an attack on several aspects of the litigation history, including what would appear to be unsubstantiated criticisms of the staff in the High Court at Auckland. However the submissions do not focus with any clarity on that part of the substantive judgment which addresses Ms Ding’s application for joinder.
Having referred to the content of the minute of Clifford J in CA392/2020 and the judgment in Norman & Ors v ANZ Bank Ltd,[16] Moore J observed that the present case was different from Norman where judgment had not been sealed and the recall option under the third category of Horowhenua County v Nash (No 2)[17] was thus available.[18] Because in the present case judgment had been sealed the Judge considered that the recall option was not available and hence the application to be joined as a party necessarily failed.[19]
[16]Norman & Ors v ANZ National Bank Ltd, above n 6.
[17]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC).
[18]Substantive decision, above n 1, at [97].
[19]At [98]–[99].
This Court has recognised that in exceptional circumstances a recall application may be considered notwithstanding the sealing of a judgment.[20] The exceptional circumstances in Wagg were that before judgment was sealed, counsel for the applicants had written to the Court advising of his intention to file a recall application and asking for the judgment not to be sealed in the meantime. Unfortunately the letter was overlooked and judgment was sealed.
[20]Wagg v Squally Cove Forestry Partnership [2013] NZCA 612 at [4].
The present case is not in that exceptional category. The judgment having been sealed, recall was not available. In our view there is no discernible error in the analysis of Moore J.
However even if there was an arguable error of law or fact, it is not of such a nature as to satisfy the requirement in [18(c)] above. The significance of Ms Ding’s application is confined to the circumstances of this particular case. It does not raise any broader issue which would warrant this Court granting leave for a second appeal.
From our consideration of the contentions advanced by Ms Ding, there is no sound basis for delaying further the liquidation process. Hence it would not be in the interests of justice to grant leave for an appeal to this Court on the joinder issue.
Result
The application for leave to appeal is declined.
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