Kang v Geneva Capital Limited

[2025] NZHC 908

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-002533 [2025] NZHC 908

BETWEEN

WETEX KANG

Appellant

AND

GENEVA CAPITAL LIMITED

Respondent

Hearing:

14 April 2025 (by teleconference)

Appearances:

Appellant in person

C R Andrews for Respondent

Judgment:

14 April 2025

JUDGMENT OF VENNING J

[APPLICATIONS: LEAVE TO APPEAL AND STAY]

This judgment was delivered by me on 14 April 2025 at 2.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           McVeagh Fleming, Auckland Copy to:  Appellant

KANG v GENEVA CAPITAL LIMITED [2025] NZHC 908 [14 April 2025]

[1]                 In the judgment delivered on 6 March 2025,1 the Court dismissed Mr Kang’s appeal against the decision of Judge N R Dawson2 to enter summary judgment against him in favour of Geneva Capital Limited (Geneva) in the sum of $199,575.68.

[2]                 Mr Kang now seeks leave for a second appeal to the Court of Appeal and also seeks a stay of the District Court judgment and the costs ordered by this Court pending the hearing of his appeal. Mr Kang’s applications are opposed by Geneva.

Application for leave to appeal

[3]                 Section 60 of the Senior Courts Act 2016 provides for a second appeal to the Court of Appeal with leave. The case of Waller v Hider,3 confirms that generally for leave to be granted the appeal must raise some question of law or fact capable of bona fide or serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal. The test is a restrictive one. The scarce time and resources of the Court of Appeal are not to be wasted nor additional unnecessary expense for parties incurred.

[4]                 Further, the Court of Appeal’s limited resources ought not to be distracted on appeals that lack merit.4

[5]                 Mr Kang’s applications are supported by his affidavit dated 8 March and a memorandum dated 14 April 2025. In his affidavit Mr Kang says he believes his appeal has a good prospect of success. He says that the Court failed to consider whether the Credit Contracts and Consumer Finance Act 2003 (CCCFA) applied to his personal guarantee. The Court also failed to consider the validity of his personal guarantee and erred in issuing the summary judgment as he has a strong defence. He also argues the Court erred in concluding the loan agreement was not signed under undue influence.

1      Kang v Geneva Capital Ltd [2025] NZHC 414.

2      Geneva Capital Ltd v Manuka Honey Index Ltd [2024] NZDC 19576.

3      Waller v Hider [1998] 1 NZLR 412 (CA) at 413.

4      Downer Constructions (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [36].

[6]                 Mr Kang suggests that there may be a number of people in the same position as him as a guarantor so that the appeal will raise matters of general interest. He also proposes to challenge the finding that he failed to produce sufficient evidence to establish he has an arguable defence.

[7]                 In its appeal judgment this Court considered whether the CCCFA applied to Mr Kang’s personal guarantee and, for the reasons set out in the judgment concluded it did not. Further, the Court considered the validity of Mr Kang’s personal guarantee, noting that Mr Kang’s obligations under the loan agreement and guarantee he signed were clear. As to the issue of undue influence, as the District Court and this Court both observed, there was no evidence to support his submission he was acting under undue influence when he entered the guarantee.

[8]The short point is Mr Kang’s proposed appeal is without merit.

[9]                 The application for leave to appeal is dismissed. The Court of Appeal should not be troubled with the proposed appeal.

Stay

[10]              The basis of the stay is to preserve Mr Kang’s position pending the appeal and he also proposes to pursue a new claim against Geneva in the District Court. If a stay is not granted it is likely Mr Kang will be bankrupted. Mr Kang suggests that if a stay is not granted the appeal will be rendered nugatory and he will suffer irreparable harm as bankruptcy would bring shame to his family and constrain his ability to travel.

[11]              In light of the decision on the application for leave to appeal there is no basis for this Court to grant a stay. Mr Kang has a right to apply to the Court of Appeal for leave to bring a second appeal but, on my assessment of the merits of the proposed appeal it would not be in the interests of justice to grant a stay in the meantime.

[12]              As noted, Mr Kang also says that he has issued proceedings in the District Court against Geneva in relation to the Okau Road issue referred to in the judgment.

[13]              If Mr Kang is bankrupted and the Official Assignee considered there were merits in that claim it could be pursued.

[14]              None of the other points Mr Kang raised support a stay. The application for stay is also dismissed.

Costs

[15]              Mr Kang is to pay costs to the respondent on a 2B basis for the notice of opposition and hearing.

Venning J