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Ding v James

Ding v James

Case [2021] NZCA 578 3 November 2021

Civil Litigation & Procedure

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA356/2021
[2021] NZCA 578

BETWEEN	CAOPING DING First Applicant BARRY BAI Second Applicant
AND	THOMAS EDMUND WILLIAM JAMES First Respondent KEATON PRONK, IAIN MCLENNAN AND MCDONALD VAGUE LIMITED Second Respondents

Court:	Brown and Courtney JJ
Counsel:	Applicants in Person B M K Pamatatau for First Respondent No appearance for Second Respondents
Judgment: (On the papers)	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…

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 Ding v James

Details

AGLC: Ding v James [2021] NZCA 578
Case: [2021] NZCA 578
Decision Date: 3 November 2021 at 10.30 am

CaseChat Overview and Summary

Ding and Bai applied for leave to appeal against several aspects of a High Court decision concerning the liquidation of a company, NZSouthpole Team Ltd, and the refusal to add Ding as a party to the proceedings. The Court of Appeal found that it did not have jurisdiction to entertain the appeal on most grounds, as the applicants had failed to apply for leave to appeal within the requisite timeframe, and the Court could not entertain a third appeal from the District Court’s decision. The Court did have jurisdiction to hear an appeal concerning the refusal to terminate the liquidation under s 250 of the Companies Act, but this appeal was also out of time. The only matter properly before the Court was the refusal to add Ding as a party to the liquidation proceedings. However, the Court found that there was no arguable error of law or fact warranting an appeal, and the matter was of no broader significance. The Court declined the application for leave to appeal.

The Court of Appeal held that the application for leave to appeal was declined. No further appeal could be advanced until an application for an extension of time was made and determined. The Court found that there was no discernible error in the High Court's reasoning in refusing to add Ding as a party to the liquidation proceedings. Even if there had been an arguable error, it was not of sufficient significance to warrant an appeal, as the matter was confined to the circumstances of this particular case and did not raise any broader issue. Allowing an appeal would not be in the interests of justice and would only result in further delay.

Orders