He v Chen - [2025] NZCA 556

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA457/2024
[2025] NZCA 556

BETWEEN	YAO WEI HE Applicant
AND	ZHIXIONG CHEN Respondent

Hearing:	13 October 2025
Court:	Courtney, Palmer and Collins JJ
Counsel:	D Zhang and E T Wuozhing for Applicant C Jiang and K A Mills for Respondent
Judgment:	22 October 2025 at 11 am

JUDGMENT OF THE COURT

AThe application for an extension of time to file the case on appeal and apply for a hearing date is declined.
BThe applicant must pay the respondent costs for a standard application on a band A basis together with usual disbursements.

REASONS OF THE COURT

(Given by Courtney J)

Introduction

On 12 July 2024, Mr He filed an appeal against a decision of Becroft J dismissing Mr He’s claim against Mr Chen.[1] The claim arose from a commercial relationship in which milk formula was exported from New Zealand to Hong Kong and China. Mr He asserted that a joint venture existed between him and Mr Chen. The relevant events occurred between 2007 and 2012. The proceedings were commenced in 2014 but did not come to trial until 2024.
[1]He v Chen [2024] NZHC 1565 [judgment under appeal].
Mr He filed his appeal within time but failed to apply for a hearing date
or file a case on appeal within the time required by r 43(1) of the
Court of Appeal (Civil) Rules 2005. On 16 December 2024, the appeal was
deemed abandoned as of 14 October 2024.[2] On 5 February 2025, Mr He applied
[2]On 10 October 2024, Mr He had, in fact, sought a two‑month extension (to 16 December 2024) but the Court of Appeal (Civil) Rules 2005, r 43(1A)–(1B) only permitted an extension of up to one month. In any event, Mr He had not filed the case on appeal by that date either.
[3]See Court of Appeal (Civil) Rules, r 43(7).
under r 43(2) for an extension of time, seeking orders reinstating the appeal, allowing him till 28 February 2025 to file a case on appeal and seek a hearing date.[3] Mr Chen opposes the application.
The factors relevant to an application for extension under r 43 are those set in the decision of the Supreme Court in Almond v Read.[4] These are: the length of the delay and the reason for it; the parties’ conduct; the extent of prejudice to the other party; and whether the appeal raises any issue of public importance. Generally, the merits of the appeal will not be relevant unless it is clearly hopeless.[5]

The application

Delay

[4]Yarrow v Westpac New Zealand Ltd [2018] NZCA 601 at [4], referring to Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].

[5]Almond v Read, above n 4, at [38]–[39].

Mr He says that he was unrepresented at the time and did not realise that he was required to file a case on appeal within a specified time. By the time…

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 He v Chen

Details

AGLC: He v Chen [2025] NZCA 556
Case: [2025] NZCA 556
Decision Date: 22 October 2025 at 11 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Yao Wei He sought an extension of time to file a case on appeal and apply for a hearing date against Zhixiong Chen, which was dismissed. The appeal arose from a claim related to a commercial relationship involving the export of milk formula from New Zealand to Hong Kong and China. The central dispute concerned whether a joint venture existed between He and Chen, with events in question dating from 2007 to 2012. Although He filed his appeal within the statutory timeframe, he failed to comply with the procedural requirements stipulated in r 43(1) of the Court of Appeal (Civil) Rules 2005, leading to the abandonment of the appeal. Subsequently, He applied for an extension under r 43(2) of the same rules, requesting reinstatement of the appeal and an extension until 28 February 2025 to file a case on appeal and seek a hearing date. Chen opposed the application.

The legal issues before the Court were whether He's delay in applying for an extension was satisfactorily explained and whether the appeal raised any issues of public importance. The Court examined the factors relevant to the application for an extension, including the length of the delay, the reason for it, the parties' conduct, the extent of prejudice to the other party, and whether the appeal raised any issues of public importance. He argued that he was unrepresented at the relevant time and did not realise the necessity of filing a case on appeal within the specified time. He also claimed that the case was too complex to prepare alone, though he now had professional assistance. Chen, on the other hand, highlighted He's substantial litigation experience and previous delays in similar proceedings against Chen. The Court did not find He's explanation for the delay satisfactory, noting his previous experience and current representation.

The Court also considered the conduct of the parties and the prejudice to Chen, who sought finality due to the protracted and costly litigation. He's previous unsuccessful claims and appeals against Chen, coupled with his failure to comply with timetable orders, further prejudiced Chen. The merits of the appeal were not deemed relevant unless the appeal was clearly without merit. Chen argued that the appeal was such an appeal, citing the general nature of the notice of appeal and the inherent implausibility of He's claims. The Court did not determine whether the appeal was clearly hopeless. Ultimately, the Court concluded that He had not satisfactorily explained his delay and that Chen was entitled to see the dispute finalised. Therefore, the application for an extension of time was declined, and He was ordered to pay Chen's costs for a standard application on a band A basis together with usual disbursements.

Orders