Jin v District Court at North Shore
[2017] NZHC 759
•24 April 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-002638 [2017] NZHC 759
UNDER the Judicature Amendment Act 1972 IN THE MATTER OF
the decisions of the District Court
BETWEEN
RUJING JIN Applicant
AND
DISTRICT COURT AT NORTH SHORE First Respondent
YASUKI KONISHI AND MAKIKO KONISHI
Second Respondents
Hearing: 16 March 2017
(Final submissions: 30 March 2017)
Appearances:
Y Lee for Applicant
D B Hickson for Second RespondentsJudgment:
24 April 2017
JUDGMENT OF GILBERT J
This judgment is delivered by me on 24 April 2017 at 3 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitors:
Yoon Lee, Auckland
D B Hickson, Auckland
JIN v DISTRICT COURT AT NORTH SHORE & ANOR [2017] NZHC 759 [24 April 2017]
Introduction
[1] Yasuki and Makiko Konishi apply to strike out this proceeding in which Rujing Jin seeks judicial review of various procedural orders made (and in some cases not made) in District Court proceedings. Ms Jin’s objective in bringing the judicial review proceedings is to enable the costs awarded in the District Court, as varied on appeal to this Court, to be revisited. The District Court proceedings have been finally determined. The costs of those proceedings have also been finally determined following the appeal to this Court. There has been no application for leave to appeal to the Court of Appeal against this Court’s decision and the issue of costs in relation to the District Court proceeding is therefore res judicata. The present proceeding, pursued for the purpose of seeking a different costs outcome, therefore amounts to a collateral attack on a final judgment of this Court. It is an abuse of process and must be struck out.
Background
[2] The proceeding has its origin in an agreement entered into in July 2010 for the sale and purchase of a newly constructed house between Ms Jin as vendor and Mr and Mrs Konishi as purchasers. Mr and Mrs Konishi initially purported to cancel the agreement for alleged failure by Ms Jin to remedy defects in the house but this cancellation was invalid. Nevertheless, Mr and Mrs Konishi later validly cancelled the agreement in April 2011 after the new title issued because it was a cross-lease, not a freehold title as stipulated in the agreement. The real estate agent was prepared to release the deposit of $30,000 to Mr and Mrs Konishi in May 2011 and that should have been the end of the matter.
[3] However, Mr and Mrs Konishi preferred to pursue a claim they had already initiated against Ms Jin in the District Court seeking a declaration that the agreement had been validly cancelled. This was despite the District Court having no jurisdiction to make such an order. They also sought the return of their deposit even though Ms Jin never received the deposit and the real estate agent was prepared to refund it. Mr and Mrs Konishi also sought interest on the deposit and reimbursement of rent but they had no entitlement to these sums.
[4] Despite there being no underlying merit in the claims, the extremely modest sum in issue and the lack of any substantive dispute, the proceedings in the District Court dragged on for over four years and became mired in procedural contests leading to appeals and applications for judicial review to this Court and further appeals to the Court of Appeal and the Supreme Court. Costs quickly escalated well beyond the amount in issue. As a result, from an early stage, the dispute became centred on the issue of costs and there it has remained.
[5] Because Ms Jin did not comply with a number of procedural orders made in
the District Court, including “unless orders”, her defence was struck out on 30 April
2013. This enabled Mr and Mrs Konishi to pursue their claim by way of formal proof. However, the claim inevitably failed because there was never any basis for it. In a reserved judgment delivered on 24 April 2015 following the formal proof hearing, Judge M-E Sharp found that the District Court did not have jurisdiction to
make the declaration sought.1 In any event, there was no contest that the agreement
had been validly cancelled and the deposit had already been repaid by the time of the hearing. The Judge declined to award interest on the deposit, finding that there was no right to claim it. That left only the issue of costs. The Judge declined to make any order for costs for the proceedings other than an award of indemnity costs against Ms Jin on her unsuccessful application to set aside the order made on
30 April 2013 striking out her defence. These costs amounted to $13,641.75.
[6] Ms Jin appealed to this Court against the costs orders made by the
District Court. The appeal was allowed by Woodhouse J in a judgment delivered on
5 October 2015.2 Woodhouse J concluded that Mr and Mrs Konishi’s substantive claim was without merit but this was offset by defaults by Ms Jin in complying with timetable directions leading ultimately to her defence being struck out. Accordingly, Woodhouse J quashed the order for indemnity costs made in favour of Mr and Mrs Konishi in the District Court and ordered that they pay costs to Ms Jin in the
sum of $6,000.
1 Konishi v Jin [2015] NZDC 6954.
2 Jin v Konishi [2015] NZHC 2417.
[7] Ms Jin remains considerably out of pocket because she has attracted a number of other adverse costs awards in the course of the proceedings, including:
(a) $25,568.48, being indemnity costs awarded by Wylie J on 18 April
2013 on an unsuccessful application for judicial review of six procedural orders made in the District Court proceeding;3
(b)$8,358, being costs awarded by Wylie J on 23 July 2013 on an unsuccessful application for interim relief; 4
(c) $548, being costs awarded by Associate Judge Sargisson on 13 August
2013 following the withdrawal of bankruptcy proceedings;
(d)$1,000, being costs awarded by Katz J on 25 September 2013 on an unsuccessful application to withdraw a charging order;
(e) $1,555, being costs awarded by Associate Judge Christiansen on
27 November 2013 in relation to bankruptcy proceedings.
(f) $20,988.22, being indemnity costs awarded by the Court of Appeal on
19 February 2014 following their dismissal of appeals from the judgments of Wylie J giving rise to the costs awarded in (a) above;5
(g) $2,500, being costs awarded by the Supreme Court on 12 February
2014 on the unsuccessful application for leave to appeal against the
Court of Appeal’s decision giving rise to the costs award in (f) above;6
(h) $2,488.90, being costs awarded by Associate Judge Bell on 8 May
2014 in relation to bankruptcy proceedings;
(i) $5,682, being costs awarded by Associate Judge Sargisson on 16 June
2015 in the bankruptcy proceedings;
3 Jin v Konishi [2013] NZHC 810.
4 Jin v North Shore District Court [2013] NZHC 1839.
5 Jin v North Shore District Court [2013] NZCA 475.
6 Jin v North Shore District Court [2014] NZSC 1.
(j) $2,034, being costs awarded by Associate Judge Christiansen on
17 June 2016 in the bankruptcy proceedings; and
(k)$1,115, being costs awarded by Hinton J on 8 November 2016 in relation to an abandoned appeal.7
[8] Ms Jin has paid some of these costs but there is a balance of $29,353.75 outstanding after offsetting the costs awarded in her favour by Woodhouse J.
The present proceeding
[9] Ms Jin commenced the present proceeding on 19 October 2016, the day before the hearing of her application to set aside a bankruptcy notice served by Mr and Mrs Konishi in reliance on the outstanding costs awards. Its purpose was to provide a basis for her contention that she has a cross-claim that equals or exceeds the amount of the judgment debt. This claim is based on Ms Jin’s contention that if she succeeds with her application for judicial review of the procedural orders in the District Court, she will achieve a better costs outcome in relation to those proceedings than she achieved in her appeal to this Court. In a judgment delivered on 11 November 2016, Associate Judge Doogue dismissed Ms Jin’s application to set
aside the bankruptcy notice.8
[10] In her statement of claim in the present proceeding, Ms Jin seeks judicial review of the following decisions in the District Court proceeding:
(a) Judge Sharp’s minute of 8 June 2016, after the proceedings had been finally determined, declining to rescind orders made in the course of the proceeding;
(b)the District Court’s failure to release two minutes of Judge Hinton, dated 17 and 28 September 2012 respectively. The first of these minutes recorded the Judge’s view that a judicial settlement
conference would be desirable and the second advised that no such
7 Jin v Konishi [2016] NZHC 2675.
8 Konishi v Jin [2016] NZHC 2702.
conference would be scheduled because Mr and Mrs Konishi were not willing to participate;
(c) Judge Sharp’s minute of 10 August 2016, after the proceedings had been finally determined, declining to hear Ms Jin’s application to strike out the third amended statement of claim and enter judgment in her favour on it;
(d)Judge Sharp’s oral judgment on 9 December 2013 dismissing Ms Jin’s application to set aside the order debarring her from defending the proceeding;
(e) Judge Sharp’s minute dated 20 December 2013 referring Ms Jin’s counsel to the New Zealand Law Society for consideration of disciplinary action;
(f) the District Court’s failure to address outstanding costs issues on
interlocutory matters;
(g) consent orders, including an “unless” timetable order, made by
Judge Mathers on 19 December 2012;
(h)Judge Sharp’s judgment dated 30 April 2013 striking out Ms Jin’s defence for failing to comply with “unless orders”, including those made by consent by Judge Mathers; and
(i) Judge Sharp’s judgment dated 24 April 2015 dismissing Mr and
Mrs Konishi’s application for judgment by way of formal proof. [11] The relief sought in the proceeding is as follows:
(a) a declaration that the claim was moot and the District Court did not have jurisdiction to grant a declaration;
(b)a declaration that all of the decisions of the District Court were moot, fundamentally flawed and invalid, apart from the two minutes of Judge Hinton [not] issued on 17 and 28 September 2012;
(c) alternatively, Ms Jin seeks:
(i)a direction requiring the District Court to hear her application, filed after the proceeding was concluded, to strike out the third amended statement of claim;
(ii)a direction requiring the District Court to issue costs decisions on interlocutory applications; and
(iii)a declaration that the order striking out her defence was invalid and a nullity.
Strike-out application
[12] The jurisdiction to strike out a statement of claim is exercised sparingly and only in clear cases where the Court can be confident that the claim cannot succeed. Nevertheless, the Court has a duty to strike out claims that amount to an abuse of its processes. This is such a case.
[13] As noted, the District Court proceedings were finally determined in Ms Jin’s favour, save in respect of costs. The issue of costs for the District Court proceeding was finally determined by Woodhouse J. That judgment dealt with the costs of the entire proceeding, which Woodhouse J referred to as “proceeding costs” and the indemnity costs award made by Judge Sharp in October 2013. The appeal period having long expired, the District Court proceeding must now be regarded as having been finally determined and there is no basis to re-open the procedural orders that led to it. The issues that were raised in that proceeding, including the question of costs, are res judicata and cannot be re-visited.
[14] Woodhouse J considered all of the same arguments that Mr Lee advanced before me in response to the strike-out application. There is no escape from the fact
that Ms Jin is simply attempting through these proceedings to achieve a better outcome on costs than she obtained from Woodhouse J on her costs appeal. The present proceeding is nothing more than an impermissible attempt to collaterally attack the final judgment of this Court on the costs issue. It is therefore an abuse of process and must be struck out. The public interest requires that there be finality in litigation.
[15] The hopelessness of the claim is plain when one examines the detail of it:
(a) There is no prospect that this Court would grant relief on judicial review of Judge Sharp’s minute issued on 8 June 2016 declining to entertain yet another application from Ms Jin. The Judge was plainly functus officio at that stage, the proceeding having been finally determined by her over a year earlier.
(b)The alleged administrative failure to release Judge Hinton’s minutes of September 2012 does not involve the exercise of a statutory power of decision and is not amenable to review. In any event, the second of these minutes merely advised that there would be no judicial settlement conference. It is inconceivable that any relief could be granted in relation to the alleged failure to circulate these minutes.
(c) There is again no prospect of an application for judicial review succeeding in relation to Judge Sharp’s minute of 10 August 2016 declining to hear Ms Jin’s application to strike out the third amended statement of claim. The Judge was plainly correct in advising that she was functus officio having finally determined the claim and entered judgment in favour of Ms Jin on it.
(d)Ms Jin’s application for judicial review of Judge Sharp’s judgment dated 9 December 2013 declining to set aside her earlier order debarring Ms Jin from defending the proceeding is also hopeless. Ms Jin did not need to defend the proceeding because it was dismissed on its merits.
(e) There is no prospect of this Court granting relief in relation to Judge Sharp’s minute of 20 December 2013 referring Ms Jin’s counsel to the New Zealand Law Society for consideration of disciplinary action, even if that was a decision amenable to review. The New Zealand Lawyers and Conveyancers Disciplinary Tribunal has already made a determination of unsatisfactory conduct following this
referral9 and that conclusion was confirmed on appeal to this Court.10
(f) The alleged failure of the District Court to determine costs is manifestly incorrect. Costs were determined in the District Court for the whole of the proceedings and reviewed by this Court on appeal. This Court’s final determination of the “proceeding costs” by Woodhouse J cannot be reopened through the present application for judicial review.
(g) Judge Mathers’ timetable directions made by consent on 19 December
2012 no longer have relevance and cannot be judicially reviewed now that the proceedings have been concluded.
(h) Judge Sharp’s judgment dated 30 April 2013 striking out Ms Jin’s
defence is not amenable to review for the reasons already given.
(i)There is also no prospect of this Court granting relief on judicial review of Judge Sharp’s judgment dated 24 April 2015 dismissing Mr and Mrs Konishi’s claim. It is not clear why Ms Jin would wish to challenge this judgment by way of judicial review given that it was entirely in her favour, other than in respect of costs. Her complaint regarding costs has now been dealt with on appeal to this Court.
[16] The relief sought in this proceeding is also clearly unavailable. It is inconceivable that this Court would make a declaration that the District Court had no
jurisdiction to make the declaration sought by Mr and Mrs Konishi when no one
9 Auckland Standards Committee 3 v Lee [2015] NZLCDT 42.
10 Lee v Auckland Standards Committee [2016] NZHC 2372.
challenges the District Court’s conclusion that there was no such jurisdiction. There would be no reason why this Court would direct the District Court to hear applications which the District Court had no jurisdiction to hear, those applications being filed after the proceedings concluded. There is also no prospect that this Court would direct that District Court to make costs determinations for interlocutory applications that have already been finally determined by this Court.
[17] The proceeding has no prospect of success. It is frivolous and vexatious and an abuse of the process of the Court. It must be struck out.
Result
[18] The plaintiff’s statement of claim dated 19 October 2016 is struck out in its
entirety.
[19] If the issue of costs cannot be resolved, the respondents should file and serve a memorandum setting out the basis of their claim for costs within 14 days of the date of this judgment. Any memorandum in response should be filed and served
within 14 days thereafter.
M A Gilbert J
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