Lau v Down Under Developments Limited

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA768/2024
[2025] NZCA 316

BETWEEN	EE KUOH LAU Applicant
AND	DOWN UNDER DEVELOPMENTS LIMITED First Respondent
AND	OFFICIAL ASSIGNEE Second Respondent

Court:	Palmer and Collins JJ
Counsel:	Applicant in person M Singh for First Respondent No appearance for Second Respondent
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

The Court of Appeal of New Zealand heard an application from Ee Kuoh Lau, the applicant, against Down Under Developments Limited, the first respondent, and the Official Assignee, the second respondent. Lau sought an extension of time to appeal a High Court decision that adjudicated him bankrupt. The High Court had granted Down Under’s creditor’s application to declare Lau bankrupt over a debt of $12,062. Lau, who was in prison at the time, opposed the application but was unsuccessful. Lau filed a notice of appeal within the required time frame but failed to serve it on the Official Assignee within the stipulated period. Lau applied for an extension of time to appeal under rule 29A of the Court of Appeal (Civil) Rules 2005, arguing that his delay was due to his incarceration and a lack of awareness about the necessity of serving the notice on the Official Assignee.

The legal issues before the Court were whether the application for an extension of time should be granted, considering the late service on the Official Assignee. The Court considered the principles outlined in Almond v Read, which emphasized that the decision to grant an extension should be based on what the interests of justice require in the particular circumstances of the case. The Court also took into account the merits of the appeal, the extent of the delay, and whether the delay had prejudiced any party. Down Under, represented by counsel, opposed the extension on grounds that it was vexatious and had no merit, but acknowledged that it was not prejudiced by the delay.

In granting the extension, the Court of Appeal found that while the merits of Lau’s appeal seemed weak, the delay was minor and appeared to stem from a misunderstanding about the appeal processes. Furthermore, Down Under was not prejudiced by the delay. The Court concluded that the interests of justice in this case required granting the extension, as the delay was not significant, and there was no prejudice to the respondents. The Court of Appeal therefore granted the application for an extension of time.

The final orders of the Court were that the application for an extension of time was granted, allowing Lau to proceed with his appeal against the High Court’s adjudication of bankruptcy.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established