Keung v Connolly - [2023] NZHC 3286

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-301

[2023] NZHC 3286

BETWEEN
SENG BOU KEUNG (also known as PAUL KEUNG)

Appellant

AND

LEISHA MAUD CONNOLLY

Respondent

Hearing: Determined on the papers

Appearances:

Appellant in person

W J Palmer and L C Elliott for Respondent

Judgment:

20 November 2023

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 20 November at 5.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

KEUNG v CONNOLLY [2023] NZHC 3286 [20 November 2023]

Introduction

[1] The appellant, Seng Bou Keung seeks an extension of time to apply for leave to bring a second appeal in a civil proceeding.

[2] Mr Keung and the respondent, Leisha Connolly, were previously in a relationship which ended approximately three years ago.

[3] In 2022, Ms Connolly brought a successful summary judgment application against Mr Keung in the District Court for the payment of the outstanding balance of a loan ($49,000), together with interest and costs.1 Mr Keung opposed judgment on the basis that, as a matter of fact, Ms Connolly’s advance ($90,000) to him had been provided not as a loan but as an investment in a joint venture. Judge Zohrab found the contemporaneous documents supported Ms Connolly’s evidence and found Mr Keung’s explanation as to what had happened to be “totally implausible”.2

[4] Mr Keung appealed the summary judgment to this Court. He was represented by senior counsel on the appeal. The appeal was dismissed.3 As described by Gendall J in the appeal judgment:4

The principal issue in this proceeding is whether, in September 2020, Ms Connolly advanced by way of a repayable loan to Mr Keung a total amount of $90,000 (of which the $49,000 formed part) or whether, as Mr Keung alleges, this was not a loan but rather an investment in a joint venture arrangement between the two of them.

[5]Gendall J further explained:5

On the present appeal, Mr Keung contends this is not a matter capable of resolution by summary judgment, largely because of what he maintains are clear factual disputes that exist and the need for credibility issues to be tested here through the full substantive trial process.

1 Connolly v Keung [2022] NZDC 8108 [District Court decision].
2 At [138].
3 Keung v Connolly [2023] NZHC 2381 [High Court decision].
4 At [2].
5 At [4].

[6] Gendall J then reviewed the three grounds of appeal advanced on behalf of Mr Keung before concluding:6

Overall, I am satisfied no error was made by Judge Zohrab in his careful and detailed decision on Ms Connolly’s summary judgment application. He did not err in deciding to proceed with the summary judgment hearing in the circumstances I have noted above, nor did [he] err in granting summary judgment to Ms Connolly. Nothing that Mr Keung has endeavoured to put before this Court to bolster his appeal has made any difference here. Ms Connolly has succeeded in establishing that…

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 Keung v Connolly

Details

AGLC: Keung v Connolly [2023] NZHC 3286
Case: [2023] NZHC 3286
Decision Date: 20 November 2023

CaseChat Overview and Summary

In Keung v Connolly, the appellant, Seng Bou Keung, sought an extension of time to apply for leave to bring a second appeal against the respondent, Leisha Connolly, in relation to a civil proceeding. The previous proceedings involved a loan dispute where Ms Connolly had successfully obtained a summary judgment against Mr Keung for the repayment of an outstanding balance of $49,000, together with interest and costs. Mr Keung's appeal against the summary judgment was dismissed by this Court.

The primary legal issue before the Court was whether to grant Mr Keung an extension of time to apply for leave to bring a second appeal. The Court considered the statutory regime for leave to appeal as well as the test for leave for a second appeal, which requires that the appeal must raise some question of law or fact capable of bona fide and 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 Court noted that Mr Keung, a very experienced litigant, had failed to comply with fundamental procedural requirements, including the need for affidavit evidence to support his application.

The Court found that Mr Keung had not provided a reasonable explanation for his failure to file affidavit evidence. Additionally, the issues he sought to raise in the prospective appeal were largely factual and not of sufficient importance to justify further appeal. The Court emphasised that granting the extension of time would not serve the interests of justice, as it would result in additional costs and delay without a realistic hope of benefit. Therefore, the Court dismissed Mr Keung's application for an extension of time to apply for leave to appeal and ordered that he pay the respondent's costs of the application on a 2B basis.

The Court also noted that the respondent would have the right to apply for increased costs and/or indemnity costs if Mr Keung sought to prolong the litigation further. This decision underscores the importance of adhering to procedural requirements and the need for proportionality in civil litigation.

Orders