Ding v James

[2021] NZHC 1189

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000506

CIV-2020-404-002132 [2021] NZHC 1189

BETWEEN

CAOPING DING and BARRY BAI

Applicants

AND

THOMAS EDMUND WILLIAM JAMES

Respondent

Hearing:

(On the papers)

Counsel:

Applicants in Person

Bruce Pamatatau for the Respondent

Judgment:

27 May 2021

JUDGMENT OF MOORE J

This judgment was delivered by me on 27 May 2021 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar / Deputy Registrar Date:

DING & ANOR v JAMES [2021] NZHC 1189 [27 May 2021]

Introduction

[1]    In my judgment of 30 March 2021, I refused Ms Ding’s application to be added as a party to the liquidation proceedings in James v NZSouthpole Team Limited, currently before the Court.1 In response, Ms Ding filed a without notice application for leave to appeal that decision. On 28 April 2021, I issued  a Minute  dismissing Ms Ding’s without notice application. Ms Ding and Mr Bai then filed an application for leave to appeal on notice, dated 30 April 2021.

[2]I now turn to determine the application for leave to appeal.

Legal principles

[3]    The application to add Ms Ding as a party to the liquidation proceedings was interlocutory in nature and as such leave is required to appeal it.2 The procedure is prescribed by s 56(3) of the Senior Courts Act 2016 (“the Act”):

“(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.”

[4]    The Court of Appeal in Ngai Te Hapu Inc v Bay of Plenty Regional Council discusses the rationale behind this rule, observing that s 56(3) of the Act was intended to reduce the volume of interlocutory appeals to the Court of Appeal.3 It went on to state:4

“…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.”

1      James v NZSouthpole Team Limited (in liq) [2021] NZHC 657 at [99].

2      Senior Courts Act 2016, s 4(1).

3      Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [15].

4 At [17].

[5]Fitzgerald J noted in Finewood Upholstery Ltd v Vaughan that:5

“…the requirement for leave to appeal should serve as a “filtering mechanism”, to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.”

[6]    The Court of Appeal in Fairway Holdings Ltd v McCullagh adopted Fitzgerald J’s approach.6 The Court of Appeal in Greendrake v District Court of New Zealand also approved it, and summarised relevant principles and considerations for an application for leave to appeal as follows:7

(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 or 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.

[7]Adopting these principles, I turn to consider the present case.

Submissions

Applicants’ submissions

[8]    Ms Ding submits that leave to appeal should be granted because this case is “simple” and “clear”. Since she is a technical and managerial staff member of NZSouthpole Team Limited (“NZSouthpole”), it is a “direct” and “simple” solution to

5      Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

6      Fairway Holdings Ltd v McCullagh [2018] NZCA 605 at [11].

7      Greendrake v District Court of New Zealand [2020] NZCA 122 at [6], referring to Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [9].

join her to the proceedings. Further Ms Ding submits that the cost of the proceedings has been “small”.

[9]    Ms Ding submits the respondents, Mr James and the liquidators, have deliberately complicated the proceedings, and that the evidence of Mr James and of others, which was used in the Waitākere District Court and this Court’s subsequent hearing, is “fake” and “expired”. Ms Ding submits that no substantial and factual content in relation to the two proceedings before the courts8 was heard in either the Waitākere District Court or Auckland High Court hearing. She also submits that the second part of her case in the 30 March 2021 judgment was neglected.

[10]   Further, Ms Ding says my 30 March 2021 judgment is biased and unfair. She alleges that personnel of this Court interfered with the liquidation trial resulting in unfairness. She asks for her application to be upheld to allow for a fair hearing and trial.

Respondent’s submissions

[11]   Mr Pamatatau, for Mr James, opposes Ms Ding’s application for leave to appeal.

[12]   Mr Pamatatau submits that Ms Ding has not satisfied the high threshold required for the Court to grant leave. Ms Ding has not identified an arguable error of law or fact. There is nothing in her application of general or public importance that warrants determination or otherwise of sufficient importance to outweigh the lack of general or precedential value.

[13]   Mr Pamatatau also submits the circumstances do not warrant further delay in the proceedings. It is not in the interests of justice that leave is granted. Ms Ding’s application does not raise a question of law or fact capable of bona fide and serious argument. He says that Ms Ding lacks the necessary legal basis required to appear or appeal on behalf of NZSouthpole.

8      Being proceedings CIV-2020-404-506 and CIV-2020-404-3212.

[14]   Finally, Mr Pamatatau submits the proceedings do not involve any public or private interest of sufficient importance to outweigh the cost and delay of a further appeal.

Discussion

[15]I must now determine Ms Ding’s leave to appeal application.

[16]   In meeting the high threshold required for leave to appeal, Ms Ding needed to point to an arguable error of fact or law. The alleged error needs to be of general or public importance warranting determination, or of sufficient importance to the applicant to outweigh the lack of general or precedential value.

[17]   Ms Ding has been unable to identify an error of fact or law. Ms Ding claims that her status as a manager of NZSouthpole means it should be a simple decision to join her to the proceedings. However, this is simply reflective of Ms Ding’s personal opinion on what the outcome should have been, it is not relative to the test for joining a party to proceedings. The law was set out in my 30 March judgment. I referred to the decision of Associate Judge Bell in Norman v ANZ National Bank Ltd where he discussed the options available to a director who wished to challenge a liquidation order.9 In that case, recall of the substantive judgment had been possible and the interested party was joined as part of the recall process. But as I pointed out at [97] and [98] of my judgment, that was never an option in Ms Ding’s case since the judgment had already been sealed.

[18]   Further, Ms Ding’s application does not rest on issues of public or general importance that would warrant granting leave despite the lack of general and precedential value in her application.   I  acknowledge the matter as important to   Ms Ding as the manager and director of NZSouthpole. However, that importance must be weighed against the value in the application. I do not consider that it would be in the interests of justice for further delay to be caused to the proceedings where little value exists.

9      Norman & Ors v ANZ National Bank Limited [2012] NZCA 356 at [16].

[19]   I acknowledge now Ms Ding’s assertion that the evidence before the Court was fake and expired, and her submissions on bias and unfairness. The issues she raised are of obvious importance to her. However, at [87] of my 30 March judgment I concluded that:

“I am not satisfied there has been any procedural unfairness or improper conduct at any stage through to and including the making of the liquidation order.”

[20]   I was entitled to make that determination as part of my findings. Ms Ding attaches to her leave to appeal submissions a copy of my 30 March judgment, an affidavit from Mr Bai and emails between Ms Ding and members of the Court’s Registry. I have canvassed these materials carefully. I find the District Court to have been entitled to rely on the evidence of Mr James and the Liquidators, and I am again not satisfied any alleged unfairness or bias is evidenced, or indeed exists.

[21]   The leave to appeal threshold for interlocutory applications is high. Ms Ding’s application lacks merit and does not meet the required standard to justify a grant of leave to appeal. It is this kind  of  case  the  filtering  process  described  in  Finewood Upholstery Ltd discussed above seeks to exclude.

Result

[22]   I  dismiss  Ms  Ding’s   application  for  leave  to  appeal  my  decision  of   30 March 2021.

Moore J

Solicitors:
Mr Pamatatau, Auckland

Copy to:

The Applicants