Keung v Connolly
[2023] NZHC 3286
•20 November 2023
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 Mr Keung has no credible or arguable defence to her claim for repayment of the balance of the very short- term loan (monies which importantly have been outstanding for something approaching three years now) and there is clearly no real question to be tried here. This is a case where the District Court and this Court need not accept uncritically evidence which Mr Keung has endeavoured to advance which I agree is baseless and riddled with inconsistencies and inherently lacking in credibility. A realistic and robust approach to the simple loan arrangement reached between Ms Connolly and Mr Keung is required here.
[7] The appeal judgment was delivered on 29 August 2023.7 It is this judgment that Mr Keung wishes to appeal.
Leave for a second appeal — the regime
[8] The test for leave for a second appeal is well summarised in McGechan on Procedure:8
SC60.02 Test for leave for a second appeal
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. Not every alleged error of law is sufficiently important, either generally or to the parties, to justify further pursuit of litigation already twice considered and ruled upon by a court, so the test is a restrictive one. The scarce time and resources of the Court of Appeal are not to be wasted, nor additional expense for parties incurred, “without realistic hope of benefit”: Snee v Snee (1999) 13 PRNZ 609 (CA) at [15]; Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
Further, the Court of Appeal has noted the trend, both in New Zealand and in the United Kingdom, “to reverse the steady increase in the number of (second appeals) reaching the Court of Appeal, and so to free up valuable and expensive judicial resources to give more and more effective attention to hearing first appeals”: Downer Construction (New Zealand) Ltd v Silverfield
6 Keung v Connolly, above n 3, at [50].
7 Leave to appeal — the statutory regime pursuant to s 60 Senior Courts Act 2016, the appeal decision is final unless Mr Keung, on application, obtains leave to appeal against the appeal decision to the Court of Appeal.
8 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at SC60.02.
Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [36]. In Chief Executive of Land Information New Zealand v Luke [2008] NZCA 43 at [18], the Court of Appeal explained that the trend reflected the Court’s fundamental role and the need for proportionality in civil litigation.
[9] The Court of Appeal’s function on a second appeal is not general correction of error. An issue of fact in a matter falling within the jurisdiction of the initial court will rarely be of public importance.9
[10] Pursuant to r 20.3(1) High Court Rules 2016, an application for leave to appeal must be made to the (first appeal) court within 20 working days after the decision is given. In relation to this case, the time for such application expired on 26 September 2023.
[11] An (on notice) application for leave, being an interlocutory application, must be in form G31 (sch 1, High Court Rules).10 Any affidavit in support of the application must be filed at the same time as the application.11
Steps taken by Mr Keung
[12] Following the delivery of the appeal judgment, Mr Keung reverted to self- representation.
[13] On 11 September 2023 Mr Keung filed a notice stating a new address for service. In a lengthy memorandum, setting out a range of matters relating to his representation, he said he intended to take legal advice as to making an appeal and his intention to produce further evidence, to be provided to the Court “as soon as the evidence is available”. The memorandum contained a request that the Court stay the appeal judgment pending the provision of the “fresh evidence”.
[14] Shortly before Mr Keung’s 11 September 2023 document was filed, he sent emails to the case officer containing documents that appeared to be intended as an indication of potential evidence.
9 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
10 High Court Rules 2016, r 7.19(4).
11 Rule 7.20.
[15] On 14 September 2023, Mr Palmer (for Ms Connolly) filed a memorandum in response to Mr Keung’s memorandum. Mr Palmer referred to the need for leave to appeal and rejected the suggestion that leave to appeal would be appropriate or that the appeal would have any chance of success. Mr Palmer, at the same time, sought the fixing of costs in relation to the appeal judgment.
[16] Since that time the Court has issued a number of Minutes and much documentation has flowed, particularly from Mr Keung. The Court made directions in relation to the determination of costs on the papers, which have since been determined (as to which see below at [32]).12 The Court also recorded the need for Mr Keung to seek leave to appeal.
[17] Thereafter Mr Keung sent to the case officer numerous medical reports and other documents. None were in the form of sworn affidavits or attached to affidavits. It appears from the documents that Mr Keung has, for some time, been treated for concussion. Mr Keung’s apparent purpose in providing the documents has been to support a request for stay of any steps relating to these proceedings. One of the physicians recorded in her letter that:
Due to multiple concussions, if court proceedings could “stay” until 18–24 months after the July 2023 concussion that would hopefully help Paul’s symptoms to reduce and functioning to improve.
[18] In light of Mr Keung submitting such informal documentation, and having regard to Mr Keung’s self-representation, the Court on 12 October 2023 issued a detailed Minute setting out the requirements for formal documentation and other procedural matters. In another Minute dated 11 October, the Court identified that on 28 September 2023 Mr Keung had given a form of notice that he was seeking leave to appeal the appeal decision. The Court recorded that, as the notice of application was not filed by 26 September 2023, Mr Keung would also need an extension of time in which to file his leave application. The Court directed the filing and service of an amended notice of application for extension of time and leave to appeal, complying with form G31, together with any affidavit evidence in support of the applications.
12 Keung v Connolly [2023] NZHC 2858 at [25]–[34] [Costs decision].
Interlocutory application for extension of time
[19] On 16 October 2023, Mr Keung filed an interlocutory application for extension of time. He failed to file any affidavit evidence in support of his application and has not filed any since.
[20] Ms Connolly opposes the application. By her notice of opposition she refers to:
(a)the failure of Mr Keung to make a properly-supported application;
(b)the inconsistency between the amount of work Mr Keung has put into this, and other litigation at times, when he asserts a physical inability to attend to Court proceedings;
(c)the entitlement of Ms Connolly to the just, speedy and inexpensive determination of the proceeding and any interlocutory applications;
(d)the lack of factual merit in Mr Keung’s arguments; and
(e)the appearance of ulterior purpose in the litigation steps Mr Keung has been taking.
Submissions
[21] Mr Keung, without supporting his application for extension of time by affidavit evidence, sought in his written submissions to suggest the analysis in the District Court and High Court judgments failed to take into account all the relevant evidence. He asserts his defence of the claim has merit.
[22] He further submits that the Court hearings were not conducted fairly and that he was “shut down” in the course of the presentation of his case.
[23] He suggests that he may have fresh evidence to provide to the Court and that the granting of further time to him by way of leave will enable him to produce that fresh evidence.
[24] Finally, he refers to a history of concussion going back to August 2022 and says that he has “committed to forwarded an updating statement medical files in affidavit format” (sic).
[25] For Ms Connolly, counsel filed submissions that spoke to the grounds set out in Ms Connolly’s notice of opposition.
Discussion
[26]This is a clear case for the refusal of extension of time.
[27] Mr Keung, a very experienced litigant, has failed to comply with the most fundamental requirements (including the need for affidavit evidence to support an application). There is no reasonable explanation for his omission to file affidavit evidence given the extent of other documentation that he has prepared and filed in the intervening period.
[28] Ms Connolly, having made the advance in question around October 2020, promptly pursued repayment in 2021 and obtained her summary judgment in June 2022. Mr Keung’s unsuccessful appeal to this Court followed.
[29] The case management requirements of the High Court Rules exist for a purpose, namely to secure the just, speedy and inexpensive determination of proceedings.13 The requirement of justice — including fairness to both parties — cuts both ways. Mr Keung (understandably) focuses on what he views as matters of fairness and justice for him. The Court, recognising that Mr Keung has at times (including now) been self-represented, has through its directions ensured that Mr Keung is aware of the minimum requirements he must meet if applications are to be pursued. He has failed to meet those requirements.
[30] Furthermore, were this Court to grant Mr Keung’s application for an extension of time to make his application for leave for a second appeal, it would be doing so in relation to a prospective appeal involving largely or entirely factual issues. None of
13 High Court Rules, r 1.2.
the issues Mr Keung raises are of sufficient importance to outweigh the costs and delay of further appeal. I am also not satisfied on the evidence filed that the factual matters Mr Keung would pursue are capable of bona fide and serious argument.
[31]The application for extension of time will be dismissed.
Costs
[32] Costs must follow the event. Costs were awarded in the High Court costs decision on an indemnity basis having regard both to the sheer hopelessness of Mr Keung’s appeal, its conduct for ulterior purposes and the barrage of irrelevant and marginal material that Mr Keung produced.14
[33] In relation to what has been a relatively narrow issue relating to extension of time, I have decided by a fine margin that an award of scale costs (on a 2B basis15) is appropriate given the relatively narrow parameters of this application. Mr Keung must understand, however, that Ms Connolly will have her right to apply for increased costs and/or indemnity costs under r 14.6 of the Rules should Mr Keung seek by any further step to prolong the period of his litigation with Ms Connolly.
Orders
[34]I order:
(a)the application for extension of time to apply for leave to appeal is dismissed; and
(b)the appellant is to pay to the respondent the costs of the application on a 2B basis, to be fixed by the Registrar, together with the respondent’s reasonable disbursements.
Osborne J
14 Costs decision, above n 12, at [25]–[34].
15 High Court Rules, Category 2 under r 14.3(1) and band B under r 14.5(2)(b).
Solicitors:
Buddle Findlay, Christchurch
Copy to:
Mr Keung, Appellant
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