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…

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] NZHC 1189
Case: [2021] NZHC 1189
Decision Date: 27 May 2021

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, was presented with an application for leave to appeal by Caoping Ding and Barry Bai, who sought to appeal the decision made by the court in relation to a previous application. The application was in relation to the refusal of Ms Ding’s application to be added as a party to the liquidation proceedings in James v NZSouthpole Team Limited. Thomas Edmund William James was the respondent.

The legal issue before the court was whether leave to appeal the interlocutory decision should be granted. The relevant legal principles were derived from the Senior Courts Act 2016 and the Court of Appeal's approach to leave to appeal in Ngai Te Hapu Inc v Bay of Plenty Regional Council. The court held 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, warranted the further delay which the appeal process would involve.

The court found that the applicants had not met the high threshold required for leave to appeal. The applicants had not identified an arguable error of fact or law, and the alleged error was not of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value. The circumstances did not warrant incurring further delay, and the interests of justice did not require granting leave to appeal. The court held that the applicants' assertion that the evidence before the court was fake and expired, and their submissions on bias and unfairness, did not meet the required standard to justify a grant of leave to appeal.

The court dismissed the application for leave to appeal the interlocutory decision. The applicants were not granted leave to appeal the decision of 30 March 2021.

Orders