Jin v Konishi - [2016] NZHC 2675

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001520 [2016] NZHC 2675

BETWEEN
RUJING JIN

Appellant

AND

YASUKI KONISHI AND MAKIKO KONISHI

Respondents

Hearing: 7 November 2016

Appearances:

Y B Lee for the Appellant, by telephone
D Hickson for the Respondents, by telephone

Judgment:

8 November 2016

JUDGMENT OF HINTON J

This judgment was delivered by me on 8 November 2016 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules

……………………………………………………………………
Registrar/Deputy Registrar

Solicitors:
Y B Lee, Auckland
D B Hickson, Auckland

JIN v KONISHI [2016] NZHC 2675 [8 November 2016]

[1] The issues are firstly, whether the appellant has abandoned her appeal and secondly, whether such abandonment can be withdrawn.

Background

[2] The history of the proceedings between the parties is quite complex.

[3] For present purposes, the appellant asked the District Court to rescind orders that had been made against her, on the grounds that those orders were obtained fraudulently.

[4] On 8 June 2016, Judge Sharp issued a Minute saying:

The proceeding has been determined. I am now functus officio. This application may not be heard and are [sic] to be returned to Mr Lee.

[5] Ms Jin appealed that decision, primarily on the grounds that it was ultra vires or contrary to natural justice.

[6] On 9 August 2016, Woodhouse J set the appeal down for hearing on

9 November 2016 and made directions, including that the appellant was to file and serve a bundle of documents by 20 September 2016 and to file and serve submissions and a chronology by 27 September 2016. The respondents had eight days in which to respond to the appellant’s submissions.

[7] Woodhouse J refers at [4], to having discussed with counsel for the appellant, questions as to whether the appeal was possibly misconceived. He records that counsel said he would give serious consideration to the matters raised.

[8] On 26 September 2016 at 1.25 pm, the appellant filed a memorandum stating as follows:
4. Counsel has discussed with the appellant the point raised at [4] of Your Honour’s minute and proposed that the more appropriate course of action would be by way of judicial review of the District Court record of the proceedings so as to cover all extant matters that the District Court has declined to deal with.

5. The relief sought at the judicial review is for mandamus and certiorari.

6. The appellant seeks leave of the Court to withdraw her Notice of
Appeal.

7. The appellant further seeks leave and requests that the Court change the fixture on 9 November 2016 to a judicial review hearing.

8. Should leave be granted, the appellant shall reformat the notice of appeal into a statement of claim for judicial review. The issue for review is whether the District Court, in declining to hear the appellant, has breached her natural justice rights to be heard for extant matters still before the court.

[9] Also on 26 September 2016 at 4.22 pm, the appellant’s counsel filed a…

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.

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Details

Case: [2016] NZHC 2675
Decision Date: 8 November 2016

CaseChat Overview and Summary

In the case of Jin v Konishi, the appellant, Rujing Jin, sought to appeal against the District Court's orders that had been made against her. The appeal was subsequently abandoned, and the appellant sought to withdraw the abandonment of the appeal and replace it with a judicial review. The court was required to determine whether the abandonment was valid and whether the appellant could withdraw it. The court held that the notice of discontinuance was an abandonment of the appeal and that the appellant could not withdraw it as there was no mistake or fraud involved. The appeal was dismissed, and the application for leave to withdraw the notice of discontinuance was declined. The court also ordered that the appellant pay costs on a 2B basis in respect of attendances regarding the application to withdraw the abandonment of the appeal, while reserving costs on the abandonment itself to be dealt with at the conclusion of the judicial review proceeding.

The legal issues in this case were whether the appellant had effectively abandoned her appeal and whether the abandonment could be withdrawn. The court held that the notice of discontinuance was an abandonment of the appeal and that the appellant could not withdraw it. The court held that the abandonment was valid, and the only way to withdraw it would be if there was something amounting to mistake or fraud. The court found that there was no such mistake or fraud in this case and that the appellant had clearly made the decision to terminate the appeal and proceed by judicial review. The court also held that factors such as the merits of the appeal and the substance of the appeal being addressed in the judicial review proceeding would be relevant in determining whether to allow the withdrawal of the abandonment.

Orders