Lau v Down Under Developments Limited
[2025] NZCA 316
•14 July 2025 at 12 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA768/2024 |
| BETWEEN | EE KUOH LAU |
| AND | DOWN UNDER DEVELOPMENTS LIMITED |
| AND | OFFICIAL ASSIGNEE |
| Court: | Palmer and Collins JJ |
Counsel: | Applicant in person |
Judgment: | 14 July 2025 at 12 pm |
JUDGMENT OF THE COURT
The application for an extension of time is granted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Palmer J)
What happened?
On 29 May 2024, Down Under Developments Ltd (Down Under), made a creditor’s application to adjudicate Mr Ee Kuoh Lau bankrupt, in respect of a debt of $12,062 that was owed as costs on a judgment.[1] Mr Lau was on remand in prison at the time but opposed the application.[2]
[1]Down Under Developments Ltd v Lau [2024] NZHC 3380 [High Court judgment] at [7] and [11].
[2]At [2].
On 11 November 2024, in the High Court at Auckland, Associate Judge Gardiner adjudicated Mr Lau bankrupt.[3] The Judge held that the statutory criteria for bankruptcy were met and, after hearing submissions, she decided not to exercise her wide discretion to refuse to adjudicate Mr Lau bankrupt.[4] She considered any prejudice to Mr Lau from not receiving the creditor’s application was addressed by the Court granting an adjournment at his request, giving him 14 weeks to pay the debt, as he indicated he would do but did not, or prepare for a hearing.[5] She was satisfied Mr Lau was not deprived of the opportunity to have the bankruptcy notice set aside because he has a genuine, triable cross-claim against Down Under.[6] There was no reason to doubt the validity of the underlying costs judgment.[7] If Mr Lau “can earn the kind of income he describes when he is released from prison, he will have the opportunity to pay his debts and have the bankruptcy annulled”.[8]
[3]At [55].
[4]At [4]–[5].
[5]At [30].
[6]At [37].
[7]At [42].
[8]At [52].
Mr Lau seeks to appeal on the basis the debt owed in the bankruptcy is less than $20,000, he did not have access to documents in prison, and he has filed a counter‑claim against Down Under which is greater than the amount he owes.
On 25 November 2024, Mr Lau filed the notice of appeal and served it on Down Under within the 20‑working day deadline. But he was also required to served it on the Official Assignee. Service on the Official Assignee was effected on 18 February 2025, 32 days out of time. He applies for an extension of time to appeal pursuant to r 29A of the Court of Appeal (Civil) Rules 2005.
Submissions
Mr Lau submits that he was unable to serve the notice of appeal on the Official Assignee as he was in prison and the lawyer assisting him may not have been aware it needed to be served. He also says he has a claim against the Official Assignee for over $20 million.
Mr Singh, for Down Under, opposes the application on the basis that it is no longer trading and cannot devote financial resources to an appeal. The reason is unsatisfactory, there is no merit in the appeal and his conduct is vexatious. Down Under acknowledges the delay has not caused it any prejudice.
Should an extension be granted?
In Almond v Read, the Supreme Court summarised the principles, and identified the considerations, relevant to decisions on extending time to appeal.[9] The ultimate question is what the interests of justice require, in the particular circumstances of the case.[10] The merits of a proposed appeal may be relevant but not, generally, where there has been an insignificant delay, and an extension should only be refused for lack of merit where the appeal is hopeless.[11]
[9]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].
[10]At [38].
[11]At [39].
The merits of Mr Lau’s appeal appear weak but it is difficult to say they are hopeless on the basis of the material before us. The delay is short and appears to have stemmed from a misunderstanding about appeal processes. As counsel for Down Under has acknowledged, it is not prejudiced by the delay. We grant the application.
Result
The application for an extension of time is granted.
Solicitors:
Glaister Keegan Lawyers, Auckland for First Respondent
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