Fung v Westpac New Zealand Limited - [2012] NZHC 2836

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-005170 [2012] NZHC 2836

BETWEEN RONNY CHEE HENG FUNG Plaintiff

ANDWESTPAC NEW ZEALAND LIMITED First Defendant

ANDMORTGAGE MANAGERS LIMITED Second Defendant

ANDTONY GOH Third Defendant

Hearing: 29 October 2012

Appearances: No appearance for plaintiff
L M Lim for first defendant
Second and third defendants not served

Judgment: 29 October 2012

(ORAL) DECISION OF ASSOCIATE JUDGE ABBOTT

Solicitors:
Simpson Grierson, Private Bag 92518, Auckland

Also to:
R Fung, PO Box 51578, Pakuranga, Auckland

RONNY CHEE HENG FUNG V WESTPAC NEW ZEALAND LIMITED HC AK CIV 2012-404-005170 [29
October 2012]

[1] This proceeding has come before me this morning for a resumption of the initial case management conference for this proceeding. The first defendant has applied orally to strike it out. For the reasons I will now give I consider that it should be struck out.

Background

[2] There is a very lengthy history to this matter. The plaintiff’s contentions against the first defendant have already been the subject of five judgments, commencing in the District Court at Manukau on 28 March 2011, and ending in the Court of Appeal with a hearing on 17 July 2012 and a judgment against the plaintiff on 26 July 2012). The claims in this proceeding, at least with respect to the first defendant, appear to be a regurgitation of the disputes previously raised and determined against him in those five judgments.

[3] The first conference was originally scheduled for 18 October 2012. On the day of the conference the plaintiff informed the Registrar that he was unable to attend because he had to take his sick daughter to hospital. Ahead of the first conference, counsel for the first defendant filed a memorandum setting out a concise analysis of the history and why it was contended that the claim simply repeated matters already determined.

[4] The memorandum was supported by an affidavit annexing correspondence from the first defendant’s solicitors to the plaintiff warning him that his issues had already been determined, and noting that the proceeding had not been served properly on the first defendant. The affidavit attached a copy of an attempted appeal by the plaintiff to the Supreme Court, and correspondence from the Supreme Court to the plaintiff dated 21 August 2012 advising that there was no right of appeal and the application for appeal could not be accepted for filing. What is significant is that the purported notice of appeal did not raise any obviously new points to those addressed in the preceding judgments, and the present statement of claim does no more, at least in respect of the first defendant.

[5] As indicated in the first defendant’s memorandum, counsel applied orally for strike out at the conference. However, in light of the advice to the Registrar, I gave the plaintiff one last opportunity to show that there was some new issue to be determined, which affected the first defendant. Against the very lengthy history (in terms of number of decisions), and the…

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 Fung v Westpac New Zealand Limited

Details

AGLC: Fung v Westpac New Zealand Limited [2012] NZHC 2836
Case: [2012] NZHC 2836
Decision Date: 29 October 2012

CaseChat Overview and Summary

The High Court of New Zealand considered a motion by Westpac New Zealand Limited to strike out a claim brought by Ronny Chee Heng Fung. The case, Fung v Westpac New Zealand Limited, involves a reiteration of disputes that have already been decided against the plaintiff in five previous judgments. The court was tasked with determining whether the plaintiff's claims against Westpac warranted dismissal for being vexatious and an abuse of process.

The court examined whether the plaintiff's claims were a rehash of issues previously determined, as well as whether there were any new matters to be considered. The plaintiff had been repeatedly warned that his claims had no merit and had been dismissed in earlier proceedings. Despite these warnings, the plaintiff continued to pursue the same issues, now framing them as a contention of fraud against Westpac. However, he failed to provide the necessary particulars to support this allegation, as required by the court rules. Additionally, the plaintiff did not comply with several court orders, including deadlines for filing memoranda and proof of his inability to attend a previous conference.

The court concluded that the plaintiff's claims were vexatious and an abuse of process, as they lacked a reasonable basis and were repetitive. The court granted Westpac's application to strike out the claim against it. The court also noted that the proceeding had not yet been served on the other defendants, and it would not proceed until proper service was effected. Furthermore, the court ordered the plaintiff to pay Westpac's reasonable costs for responding to the proceeding.

Orders