King David Investments Ltd v Zhang
[2016] NZCA 421
•7 September 2016 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA380/2016 [2016] NZCA 421 |
| BETWEEN | KING DAVID INVESTMENTS LIMITED JINYUE YOUNG |
| AND | JIE ZHANG |
| Court: | Randerson, Wild and French JJ |
Counsel: | Appellants in Person |
Judgment: (On the papers) | 7 September 2016 at 11 am |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellants, jointly and severally, must pay costs to the respondent of $2,000 and usual disbursements.
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REASONS OF THE COURT
(Given by Randerson J)
On 29 August 2016, Randerson J issued a minute drawing attention to an issue about this Court’s jurisdiction to entertain the appeal. Relevantly, the minute stated:
[1] In this appeal, the appellants challenge a consent order made by Duffy J in the High Court on 5 July 2016. The consent order was made on the basis of a handwritten settlement agreement signed by the parties.
[2] The respondent has, by memoranda, raised a number of issues including whether the appeal is brought within time, whether the first appellant company should be separately represented by counsel and whether, in any event, there is jurisdiction for this Court to consider the appeal.
[3] Putting to one side for the moment the first two issues, it seems to me that there is a real issue about the jurisdiction of the Court to entertain this appeal. Although the notice of appeal is a discursive document not susceptible of easy interpretation, it appears to seek an order setting aside the consent orders on grounds such as mistake or duress.
[4] It is well established that a court has jurisdiction to set aside an order made by consent where the interests of justice so require. However, the proper course is to apply first to the court in which the consent order is made. Any such application would have to be supported by evidence. None of these processes are readily accommodated in an appellate court.
[5] The attention of the parties is drawn to the following authorities: Waitemata City Council v MacKenzie [1988] 2 NZLR 242; Phillips v Phillips [1993] 3 NZLR 159 and Stead v The Ship Ocean Quest [1995] 3 NZLR 415.
[6] There is a need for some urgency to have the issue of jurisdiction resolved because the consent order requires King David Investments Ltd to specifically perform an agreement for sale and purchase in full no later than 13 September 2016. If the appellants wish to pursue this appeal, they must, no later than Friday 2 September 2016, file a memorandum making submissions as to why the appeal should not be struck out. The respondent will have three working days thereafter to make any submissions in response.
[7] If the appellants do not wish to pursue the appeal a notice of abandonment must be filed by the same date, 2 September 2016.
In response, the appellants filed a memorandum on 2 September 2016. They claim to have applied to the High Court on 25 July 2016 seeking to have the consent order set aside. They further say they have received no response. They also raise an issue about the interpretation of the agreement for sale and purchase at issue. They say it is in the public interest that this issue be determined.
The respondent has advised he does not wish to be put to the expense of responding to the appellants’ memorandum.
We are satisfied that if the appellants wish to challenge the consent order, their proper course is to pursue an application to set it aside in the High Court. This Court has no jurisdiction in the context of this appeal to set aside a consent order made in the High Court. Nor is it open for the appellants to raise a question on appeal about the interpretation of the agreement for sale and purchase when they have consented to an order for specific performance. The appeal is dismissed accordingly.
The appellants, jointly and severally, must pay costs to the respondent of $2,000 and usual disbursements.
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