Liang v Han

[2023] NZHC 2623

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000547

[2023] NZHC 2623

BETWEEN

CHAO LIANG

Applicant

AND

YANGFENG HAN

Respondent

Hearing:

On the papers

Appearances:

C Liang in Person

D van Hout / R Selby for the Respondent

Judgment:

20 September 2023

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 20 September 2023 at 12.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Russell Legal, Auckland

LIANG v HAN [2023] NZHC 2623 [20 September 2023]

Background

[1]    On 8 August 2023 I dismissed Mr Liang’s application for an order that a caveat not lapse.1 I held that Mr Liang had not discharged the onus on him to demonstrate that it is reasonably arguable that he has an estate or interest in the Vaughans Road property sufficient to support a caveat.

[2]Mr Liang now applies for a recall of that judgment.

Applicable law

[3]    The grounds upon which a judgment may be recalled are strictly limited. In Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No. 2),2 the Supreme Court said that three categories of cases had been recognised by the New Zealand courts in which a judgment may be recalled if not already perfected, adopting the following passage from the decision of Wild CJ in Horowhenua County v Nash (No 2) as a convenient statement of those principles:3

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled—first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

[4]    A judgment will only be recalled in exceptional circumstances.4 The recall jurisdiction is not a substitute for an appeal, or an opportunity to reopen matters already decided.5 In Faloon v Commissioner of Inland Revenue the High Court further elaborated:6

1      Liang v Han [2023] NZHC 2070.

2      Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No. 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2], referred to in Uhrle v R [2020] NZSC 62, [2020] NZLR 286 at [29].

3      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633. See also Craig v Williams

[2019] NZSC 60 at [10].

4      Uhrle v R, above n 2, at [29].

5      Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR11.9.01(1)], citing Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19, 832 (HC) at [13] and Nottingham v The Real Estate Agents Authority [2017] NZCA 145 at [11].

6      Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832 (HC) at [13], cited in Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [5].

In particular there are some things that it can be said the power to recall does not extend to. It does not extend to a challenge of any substantive findings of fact and law in the judgment. It does not extend to a party recasting arguments previously given, and re-presenting them in a new form. It does not extend to putting forward further arguments, that could have been raised at the earlier hearing but were not.

Grounds of application

[5]    Mr Liang’s application constitutes a repeat of the case he advanced at the hearing of his caveat application. He restates the allegations of forgery he made at the hearing.7 He makes further, inappropriate allegations concerning Mr Han’s counsel. He refers to provisions of the Land Transfer Act 2017 as new law, when plainly the provisions are not new, and were expressly considered in the judgment. He refers to irrelevant judicial decisions. His application is an attempt to reopen matters already decided.

[6]    Mr Liang further contends that the hearing was too short, that he did not have time to elaborate his position, or the opportunity to cross-examine witnesses, and that he could not understand Mr Han’s interpreter.

[7]    These assertions are not credible. Mr Liang chose to represent himself at the hearing. He had his own translator. He was given plenty of time to make his submissions, and, as the judgment records, he was asked questions to clarify his position.8 He did not serve a notice to cross-examine Mr Han as required by the  High Court Rules,9 and he did not indicate that he wanted to cross-examine Mr Han at the hearing.

[8]Mr Liang has not identified any proper grounds for recalling the judgment.

Result

[9]    The application for recall of this Court’s judgment of 8 August 2023 is dismissed.

7      Liang v Han, above n 1, at [16]–[18].

8 At [18].

9      Rule 9.74, High Court Rules 2016.

[10]   Mr Liang must pay Mr Han’s costs associated with opposing this application of $1,434.

Associate Judge Gardiner