Green Land Investment Limited v Mao

[2020] NZHC 1677

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-606

[2020] NZHC 1677

IN THE MATTER

of s 142 of the Land Transfer Act 2017

AND

IN THE MATTER

of an application for the removal of certain caveats

BETWEEN

GREEN LAND INVESTMENT LIMITED

Applicant

AND

JIAWEN MAO

Respondent

Hearing:	On the papers
Appearances:	G M Illingworth QC for the applicant Ms Mao in person
Date of judgment:	14 July 2020

JUDGMENT OF JAGOSE J

[Leave to appeal]

This judgment was delivered by me on 14 July 2020 at 11.00am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

G M Illingworth QC, Auckland Heritage Lawyers, Auckland

GREEN LAND INVESTMENT LIMITED v MAO [2020] NZHC 1677 [14 July 2020]

[1]                 My 14 May 2020 judgment ordered Ms Mao’s caveat removed.1 Ms Mao now seeks leave to appeal against my decision.

Approach to applications for leave to appeal

[2]                 Section 56(3) of the Senior Courts Act 2016 prohibits appeals of orders or decisions on interlocutory applications in civil proceedings without this Court’s leave. The object of requiring such leave is:2

… to limit the cases which may go on appeal in the interests of finality of litigation and the workload of the [appellate] Court, while preserving the integrity of the law and the interests of justice.

[3]                 The Court of Appeal recently endorsed this Court’s approach to leave as a “filtering mechanism”,3 noting its own approach to be similar: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.

There is no reason for this Court’s approach to be seen any differently, and it is not.5 The question is if there is something justifying intermediate appeal.

Discussion

[4]  It is not clear leave to appeal was required. Green Land brought an originating application for an order removing a caveat, which I granted. In the circumstances of an urgent application brought against an unrepresented respondent, I reserved the balance of Green Land’s application for substantive determination.6 But Green Land’s claim for the caveat’s removal was finally determined;7 my order was

1      Green Land Investment Ltd v Mao [2020] NZHC 1000 at [16].

2      Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.

3      Greendrake v District Court of New Zealand [2020] NZCA 122 at [6], citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

4      At [7], citing Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17]; and Meates v Taylor (1992) 5 PRNZ 524 (CA) at 526. Similarly, Fairway Holdings Ltd v McCullagh [2018] NZCA 605 at [11]–[14]; and McLaren v McLaren [2018] NZCA 570 at [3]–[5].

5      Li v Chief Executive of Ministry of Business Innovation and Employment [2018] NZHC 1171, [2018] NZAR 1134 at [21]–[22].

6      Green Land Investment Ltd v Mao, above n 1, at [2].

7      Murphy v Murphy [1989] 1 NZLR 204, (1988) 1 PRNZ 221 (CA).

not “ancillary” to the relief claimed by Green Land.8 Ms Mao may therefore have been entitled to appeal my decision as of right.9

[5]                 The question is complicated if refusal of an application to remove a caveat, on grounds the respondent established an arguable case of a caveatable interest in the land, 10 may be a matter of procedure (as not granting ancillary relief) for which leave would be required to appeal. The issue was not raised on the application’s call. However, given Ms Mao may seek leave from the Court of Appeal if I was to refuse it, as effectively she would now also be required to do in seeking an extension of time, I continue to address the application in its terms.

[6]                 Given Ms Mao’s lack of representation, and her agreement she did not require to be heard in person, I directed she file and serve:11

… written submissions of no more than 10 pages as to why leave should be granted, identifying:

(i)     each arguable error of law or fact in my judgment;

(ii)   its general or public importance as outweighing its lack of general or precedential value;

(iii) the circumstances warranting the further delay of the appeal; and

(iv)  what interests of justice are served by granting leave,

[7]                 Instead, in written submissions of 10 pages – supported by her memoranda and affidavit all dated or sworn 7 July 2020, all entituled in other proceedings between her father and Green Land – Ms Mao says her application for leave to appeal “should be granted as [she] had provided additional new evidence to this court” contended to support her caveat. (Ms Mao previously had sought to tender such new evidence on her unsuccessful application to set aside my judgment.)12 She adds “[Green Land]’s financial position not possible to sustain [her] losses … as trustee”, and says her application:

8      High Court Rules 2016, r 1.3, definition of “interlocutory order”.

9      Senior Courts Act 2016, s 56(1) and (2); Court of Appeal (Civil) Rules 2005, rr 29 and 29(A).

10 Green Land Investment Ltd v Mao, above n 1, at [7], citing New Zealand Limousin Cattle Breeders Society Inc v Robertson [1984] 1 NZLR 41 (CA) at 43; Castle Hill Run Ltd v NZI Finance Ltd [1985] 2 NZLR 104 (CA) at 108; Holt v Anchorage Management Ltd [1987] 1 NZLR 108 (CA) at 115; Sims v Lowe [1988] 1 NZLR 656 (CA) at 660.

11     Green Land Investment Ltd v Mao 2020-404-0606, 25 June 2020 (minute) at [2], with reference to Finewood Upholstery Ltd v Vaughan, above n 3, at [9] and [13]–[14].

12 Green Land Investment Ltd v Mao 2020-404-0606, 25 May 2020 (minute).

… must be determined immediately to avoid the liquidator may liquidate [Green Land] that appoints by [Green Land]’s creditor that push applicant as trustee of TBO to be the unsecured creditor that may not receive anything if the appointed liquidator not aware of this matter that Barr [sic] by this court results of the misleading affidavit swear by Mr Lu filed to this court April 2020.

[8]                 But all that presupposes Ms Mao has some foundation for a caveatable interest in the land, which my judgment held she did not.13 She points to no error in my judgment. Rather she contends for conflicting evidence given by Green Land in another proceeding, and then criticises Green Land’s motives and personnel. Nothing in Ms Mao’s written submissions approaches the threshold to consider granting leave to appeal. Having considered those submissions, I have not required Green Land to respond.14

[9]                 It additionally is at least unclear what now may be served by granting leave to appeal my judgment. If there are substantive consequences, that is open to being addressed on any substantive appeal. Without substantive consequences for the case, Ms Mao, or as a matter of precedent, leave should not be granted.

[10]            If I refuse leave, the Court of Appeal nonetheless may grant it.15 Even if leave again is refused, “nothing … prevents any point raised in the application for leave to appeal from being raised in an appeal against the substantive High Court decision”.16 Granting leave now permits pointless additional effort and expense on intermediate appeal.

Result

[11]            Ms Mao’s application for leave to appeal my decision to the Court of Appeal is dismissed.

13     Green Land Investment Ltd v Mao, above n 1, at [15].

14     Green Land Investment Ltd v Mao 2020-404-0606, 13 July 2020 (minute).

15     Senior Courts Act 2016, s 56(5).

16     Section 56(6).

Costs

[12]            In my preliminary view, as the successful party, Green Land is entitled to 1B costs and disbursements for steps taken in opposing the applications, as they were of a straightforward nature occupying a normal amount of time (so far as I can tell).

[13]            If that is not accepted by the parties, or they cannot otherwise agree, I reserve costs for determination on short memoranda of no more than five pages – annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate – to be filed and served by Green Land within ten working days of the date of this judgment, with any response and reply respectively to be filed within five working day intervals after service.

—Jagose J