Hsu v Moore Stephens Markhams Ltd - [2014] NZHC 961

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-383 [2014] NZHC 961

BETWEEN
PI-HSIUNG HSU

Plaintiff

AND

MOORE STEPHENS MARKHAMS LIMITED, LIQUIDATOR OF TANG SHUO DEVELOPMENT CO. LIMITED (IN LIQUIDATION)

Defendant

Hearing: 8 May 2014

Appearances:

Plaintiff in Person
R J Hooker for Defendant

Judgment:

9 May 2014

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on
9 May 2014 at 11.30 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Vallant Hooker & Partners, Auckland
Copy to:
P Hsu, 31 Haseler Crescent, Howick, Auckland

HSU v MOORE STEPHENS MARKHAMS LIMITED, LIQUIDATOR OF TANG SHUO DEVELOPMENT CO. LIMITED (IN LIQUIDATION) [2014] NZHC 961 [9 May 2014]

Introduction

[1] The plaintiff in this matter effectively seeks to set aside a judgment of Master Gambrill, delivered as long ago as 6 August 1999. In the judgment, she struck out the current plaintiff ’s defence in litigation commenced against him by Tang Shuo Development Company Ltd, struck out a cause of action that he had pleaded in a counterclaim and entered judgment in favour of the company.

[2] The application is advanced on the principal ground that there was a breach of natural justice in that he was not advised of the hearing. Mr Hooker has appeared for the liquidators who are ready to distribute a small amount of funds available for distribution, assuming that the plaintiff’s application is not allowed to proceed. He submits that the application is seriously flawed and should be struck out.

[3] The strike out application is advanced by way of memorandum, Mr Hooker pointing out that the liquidators are not in a position to incur any further costs than are absolutely necessary. I have decided in the circumstances of this case that it is appropriate to deal with the matter on the basis of Mr Hooker’s memorandum and the materials that have been provided by the plaintiff.

Strike out

[4] Rule 15.1 of the High Court Rules, which rule provides:

15.1 Dismissing or staying all or part of a proceeding

(1) The court may strike out all or part of a pleading if it—
(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b)       is likely to cause prejudice or delay; or
(c)       is frivolous or vexatious; or
(d)      is otherwise an abuse of the process of the court.
(2)      If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3)      Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.

(4) This rule does not affect the court's inherent jurisdiction.

No reasonable cause of action

[5] In Marshall Futures Ltd v Marshall, Tipping J drew a distinction between a pleading “which is a total write-off and…

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 Hsu v Moore Stephens Markhams Ltd

Details

AGLC: Hsu v Moore Stephens Markhams Ltd [2014] NZHC 961
Case: [2014] NZHC 961
Decision Date: 9 May 2014

CaseChat Overview and Summary

In Hsu v Moore Stephens Markhams Ltd, the plaintiff sought to set aside a judgment made in 1999 by Master Gambrill, which had struck out the plaintiff’s defence, dismissed his counterclaim and entered judgment in favour of Tang Shuo Development Company Ltd. The plaintiff’s application was based on the ground that there had been a breach of natural justice as he had not been advised of the hearing. The defendant, represented by Mr. Hooker, opposed the application on the basis that it was seriously flawed and should be struck out.

The court considered the legal issues surrounding the plaintiff's application to set aside the judgment. The plaintiff's claim was advanced on the basis of judicial review or as an application to set aside a judgment. However, the court found that the application for review was made over 14 years out of time, as the plaintiff had not filed the claim within 5 working days of receiving notice of the order, as required by the High Court Rules. The court also considered the possibility of setting aside the judgment under rule 10.9, which allows for the setting aside of a judgment following non-appearance if there has been a miscarriage of justice. The court found that the application should be refused as the delay in applying was problematic, and other factors such as the plaintiff's failure to appear, the substance of the defence, and potential prejudice to the creditors if the judgment were set aside, indicated that the application should be refused.

The court found that the application represented an abuse of process and should be struck out on that basis. The court also found that, in any event, proceedings could only be commenced against the company with leave of the Court under the Companies Act 1993, and the plaintiff's claims were of a seriously questionable character and unlikely to succeed. The court concluded that the application should be struck out and made an order for costs in favour of the defendant.

In conclusion, the court granted the defendant's application to strike out the plaintiff’s application and made an order for costs in favour of the defendant in accordance with category 2 and band B.

Orders