Liu v TR Group Limited
[2016] NZHC 2195
•16 September 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2016-409-192 [2016] NZHC 2195
BETWEEN BING LIU
Appellant
AND
TR GROUP LIMITED Respondent
Hearing: 14 September 2016 Counsel:
No appearance by or for Appellant
D Lester for RespondentDate ofMinute:
16 September 2016
JUDGMENT OF MANDER J
Introduction
[1] In March 2016, the appellant, Ms Bing Liu, filed a notice of appeal against a judgment of Judge MacAskill in favour of the respondent, TR Group Limited (TRG). Entry of judgment in the District Court was based on guarantees Ms Liu had provided in respect of debts owed by two companies.1
[2] The grounds of appeal identified by Ms Liu concerned the authenticity of one of the guarantee documents and that fresh evidence was available to show the signature on the guarantee could not have been hers. Ms Liu was represented by counsel in the District Court, however, she commenced her appeal without representation. In the absence of Ms Liu taking the necessary steps to prosecute her
appeal, TRG has applied to have the appeal dismissed for want of prosecution.
1 TR Group Ltd v Liu [2016] NZDC 2768.
Procedural background
[3] On 9 May 2016, Dunningham J made timetabling directions for the appeal.2
A fixture date of 14 September 2016 had been agreed for the hearing of the appeal after consultation with Ms Liu. An earlier date had proven to be unsuitable to her.
[4] In accordance with the directions for the hearing of the appeal, Ms Liu paid security in the sum of $1,115. She was also required to file more detailed points on appeal by 23 May, and to provide an affidavit attaching all further evidence she wished to adduce on the appeal by that date. The standard directions for appeals in sch 6 of the High Court Rules were to otherwise apply.
[5] On 25 May, the registry contacted Ms Liu advising she was to have filed and served her further detailed points on appeal and any affidavit evidence by 23 May, and that this material was now overdue. Formal notice of the date of hearing was also provided at that time. There was no response to the registry’s email.
[6] On 25 July, the registry sent a further notification to Ms Liu alerting her to the fact there were now many overdue actions on the file and that nothing had been filed since the appeal had been lodged. Dunningham J’s directions were explicitly listed in the email and it was noted that attention to all directions was now overdue. Both parties were told the matter would be referred to the Judge if nothing was filed by 27 July. Ms Liu’s response was to advise she was currently in China and that she would get a lawyer “to follow up the paper work” as soon as she could.
[7] On 28 July, Dunningham J issued a further minute noting that she had made directions in respect of the appeal on 9 May, and that while Ms Liu had complied with the requirement to pay security for costs no further steps had been taken by her to prosecute her appeal. It was recorded that Ms Liu was in default of all the timetabling directions, including the provision of more detailed points on appeal, evidence, and submissions. The fixture date of 14 September was noted and the observation made that it appeared marginal whether the timetabling steps could be
completed in time for the hearing date.
2 Liu v TR Group Ltd HC Christchurch CIV-2016-409-000192, 9 May 2016.
[8] On 25 August, the registry sent a further email advising Ms Liu that no material had been received and that a telephone conference was scheduled for 7
September.
[9] On 5 September, Ms Nelson, counsel based in Auckland, advised that, late the previous week, she had been instructed by Ms Liu in relation to this matter. The registry advised Ms Nelson the appeal had a hearing date of 14 September. Matters were left on the basis Ms Nelson would discuss matters with TRG’s counsel, Mr Lester. The telephone conference for 7 September was vacated as a result of advice received that both counsel were seeking instructions from their respective clients and would report back to the Court by the end of the week.
[10] On the morning of 9 September, separate memoranda were filed by the parties. Ms Liu formally sought the fixture to be vacated and for fresh timetabling orders to be made. Ms Liu instructed that she did not intend to abandon the appeal and maintained she could produce fresh evidence to show she was not in Christchurch on 8 January 2013 to sign the personal guarantee.
[11] A submission was made on behalf of Ms Liu that because of her language limitations and lack of legal skills and expertise she had been unable to attend to the Court’s directions and belatedly only instructed counsel the previous week. Ms Nelson advised, on her client’s instructions, that Ms Liu believed there would be sufficient time to allow counsel to review the matter and prepare for the hearing. However, Ms Nelson acknowledged that because of the necessary preparatory steps, as set out in the Court’s minute of 9 May, it would not be possible for the appeal to be heard on 14 September. In anticipation of opposition from TRG to Ms Liu’s application for an adjournment, Ms Nelson submitted it was in the interests of justice for the hearing date to be vacated.
[12] Mr Lester on behalf of TRG submitted the appeal had been set down for some time and that Ms Liu had failed to take any steps other than paying security to progress her appeal. Ms Liu over a long period had failed to act on the repeated inquiries of the registry and had only instructed counsel last week, which realistically was too late for the purpose of the hearing of the appeal on 14 September.
[13] Mr Lester, based on his own contact and experience of Ms Liu, including his cross-examination of her in the District Court, disputed that she lacked the skill and expertise to progress her own appeal or had language difficulties. He noted that Ms Liu had commenced her appeal as a litigant in person and there had previously been no concern expressed regarding her ability to comply with the directions of Dunningham J. It was noted the fresh evidence central to her appeal had been required to be filed within ten working days of the original case management conference and had been outstanding since May. Counsel, in my view, accurately observed that the delays and inaction on Ms Liu’s part remained unexplained and that the difficulties were of her own making.
[14] I convened a telephone conference on the afternoon of 9 September to hear Ms Liu’s application for an adjournment. Ms Nelson had no instructions regarding the payment of costs to the respondent should the adjournment be granted, nor was Ms Nelson in a position to propose the provision of security for the judgment debt which remained outstanding. Ms Nelson, through no fault of her own, was not in a position to provide explanations as to why the regular follow-ups by the registry, including Ms Liu’s advice that she was instructing a lawyer in July, had not resulted in the appeal being placed back on track. However, Ms Nelson did submit that her client was stressed with the situation and had been trying to manage the appeal. Only as the hearing date approached had she appreciated what was required to be done was beyond her.
[15] Mr Lester submitted that his client’s concern was that Ms Liu was effectively “gaming” the system by further delaying recovery of the judgment debt. Having completely failed to adhere to her obligations in accordance with the Court’s directions or to appropriately respond to the repeated inquiries of her to attend to her responsibilities, the position was of her own making. He submitted TRG’s position should not be further prejudiced by the delay in bringing finality to the matter.
[16] At the conclusion of the telephone conference I ruled that I was not prepared to adjourn the appeal. In my view, Ms Liu had ample opportunity to comply with the Court’s directions but had chosen not to do so, nor to instruct counsel until it was, for all practical purposes, too late. I observed that it was her appeal and that she was
under an obligation to prosecute it diligently. Her unexplained failure to do so had resulted in the present situation. From the notice of appeal filed by Ms Liu and the directions agreed to at the case management conference, it was apparent that the evidence which was central to her appeal should have been readily at hand and available to her.
[17] I noted the appeal would be called for hearing next Wednesday,
14 September, and that in the interim Ms Nelson was free to obtain instructions from Ms Liu and provide the Court with any further material she may wish to put before the Court to reconsider the question of an adjournment. At that time, Ms Nelson referred to the possibility of the outstanding affidavit, upon which Ms Liu’s appeal substantively relies, being able to be filed before 14 September. I observed that Ms Liu would obviously be free to appear herself or by counsel and make what representations she wished in support of her position. Ms Nelson had a conflicting commitment in the Auckland High Court, but I observed that she too was free to instruct an agent on behalf of Ms Liu if she received such instructions.
[18] The matter was left on the basis that Ms Liu’s application for an adjournment of the hearing of the appeal was declined, although that was without prejudice to the consideration of any additional information or other material she would wish to put before the Court in support of any renewed application.
[19] On the morning of 13 September the registry made contact with Ms Nelson to inquire whether any progress had been made. Ms Nelson advised she had spoken to Ms Liu and requested documents from her to file for the appeal the following day. However, Ms Nelson had received nothing. Ms Nelson advised the registry she would instruct an agent if she did receive any documents, but observed that she considered this to be unlikely. Ms Nelson was unsure, in the absence of obtaining further instructions, whether Ms Liu would appear in person when the matter was called.
[20] The appeal was called on the morning of 14 September. Mr Lester appeared on behalf of TRG, however, there was no appearance by or on behalf of Ms Liu. In the absence of the appellant and having regard to the history of this matter, Mr Lester
made application for the appeal to be dismissed for want of prosecution, under r 20.12 of the High Court Rules. Pursuant to that provision the Court may dismiss an appeal if it is satisfied the appellant has failed to proceed with it, or has failed to comply with a direction under r 7.5.
Application for dismissal of appeal
[21] It is well accepted that the principles under r 15.2 governing applications for dismissal for want of prosecution of a proceeding or counterclaim have application to decisions under r 20.12.3 In Name Suppressed v Attorney-General Associate Judge Gendall set out the principles governing an application to dismiss for want of prosecution. It is necessary for a party to show:4
(a) that the other party has been guilty of inordinate delay; (b) that such delay is inexcusable;
(c) that the delay has seriously prejudiced the defendant;
(d) it is not in the overall interests of justice to allow the case to proceed. [22] When applying these considerations in the subsequent case of Reefdale
Investments Ltd v Commissioner of Inland Revenue, Associate Judge Gendall, in considering the question of inordinate delay, noted that until a credible excuse is provided by the defaulting party the natural inference is that the delay once seen as inordinate will be considered inexcusable.5
[23] In the present case, other than the payment of security, none of the timetabling orders made by Dunningham J have been complied with despite multiple inquiries by the Court. Ms Liu was in default as early as the end of May. It is now
mid September and no steps have been taken by her to progress her appeal.
3 Gibson v Dentists’ Disciplinary Tribunal [2006] NZAR 733 (CA), approving Cathcart v
McGregor (1998) 12 PRNZ 352 (HC).
4 Name Suppressed v Attorney-General HC Wellington CIV-1996-485-000007, 31 March 2006.
5 Reefdale Investments Ltd v Commissioner of Inland Revenue HC Wellington CIV-2001-485-756,
20 December 2007.
Furthermore, no credible excuse for the failure to comply with the Court’s orders has been provided. Notwithstanding the belated assistance provided by Ms Nelson, Ms Liu has not sought to remedy her defaults, nor put before the Court any tenable explanation for her complete failure to comply with the Court’s directions.
[24] Mr Lester acknowledged that TRG has not been prejudiced anymore than any other respondent placed in the same situation, but that it has incurred the expenditure of further wasted costs and by the fact that it remains unpaid. No proposal to mitigate the effects of the delay by providing security for the judgment or to pay the judgment sum into Court pending termination of the appeal has been made. Such initiatives could have been a factor in Ms Liu’s favour when considering the overall
justice of the case.6
[25] The appeal itself centres on a challenge to a factual finding by the District Court which, in Mr Lester’s submission, has no merit. Ms Liu in her notice of appeal sought to place in issue the genuineness of her signature on the guarantee document because of the date on which it was signed. Under cross-examination in the lower Court, Ms Liu had accepted the signature on the guarantee in question was hers but contended she was not a director of the company in respect of which the guarantee was provided, nor a shareholder. She said she could not remember being asked to sign the document. During the course of Ms Liu’s evidence it was put to her that her counsel had expressly acknowledged that her signature was not a forgery nor that any improper conduct was associated with her signature being on the guarantee. Neither Ms Liu nor her counsel disputed that proposition, and in response to a question put in relation to that statement, Ms Liu explained that she signed “thousands of pieces of paper”, that if she did not sign “the credit would stop”. She said she did not have time to read the paperwork. She could not remember signing for the company in question because, as she reiterated, she was not the director or a shareholder.
[26] It is apparent therefore that the genuineness of Ms Liu’s signature was not in issue in the hearing before the District Court, and despite that potential question
6 Foster v Switched On Electrical Services and Maintenance Ltd HC Hamilton CIV-2009-419-
382, 22 July 2009.
being directly referred to in the course of cross-examination it was not raised by Ms Liu for consideration before the District Court. To the contrary, Ms Liu did not dispute that such an allegation of forgery or improper conduct had been formally disavowed on her behalf. Mr Lester submitted that concession could not be withdrawn on appeal because his cross-examination of Ms Liu on behalf of TRG had
been based upon it.7
[27] Furthermore, Judge MacAskill in his reserved decision expressly recorded that Ms Liu accepted the signature on the document was her signature. The Judge observed that neither she nor her counsel suggested it had been forged, and there was no evidential basis for any such suggestion. Judge MacAskill acknowledged that Ms Liu could not recall signing the guarantee but that her inability to recollect signing the document did not assist her.
[28] In any event, the factual issue, as far as it can be gleaned from Ms Liu’s notice of appeal, that she was not in the country on the date recorded on the guarantee document, was specifically examined by Judge MacAskill in the District Court. His conclusions in regard to her assertion that she was not in the country on 8
January are set out in his judgment as follows:8
(e) Ms Liu asserted that she was not in Christchurch on 8 January 2013.
She produced a copy of her itinerary dated 14 August 2012 for a trip by her to China, leaving Auckland International Airport on 6 January
2013. I do not give any weight to that document. Itineraries change.
Ms Liu failed to produce her passport to prove her entry into China before 8 January 2013, despite being requested to bring it to the hearing. No evidence was offered to prove that she actually left New Zealand on 6 January 2013.
(f) Even if Ms Liu had left New Zealand on 6 January 2013, that does not justify the conclusion that she did not sign the guarantee at all or did not do so on or about 8 January 2013. The fact that Ms Liu signed a guarantee of TFL’s obligations to the plaintiff on 8 October
2008, is at least an indication of her willingness to guarantee the obligations of the business conducted first by DFL and then by
DF2012L.
[29] Whatever the merit of Ms Liu’s fresh contention that it was not her signature
on the guarantee, she has had ample opportunity to file evidence to support her
7 Otago Station Estates v Parker [2005] 2 NZLR 734 (SC).
8 TR Group Ltd v Liu, above n 1.
contention but has failed to do so in the face of repeated reminders of her obligations. This was her primary responsibility after the directions hearing on
9 May, and, as already observed, despite the passage of over four months she has failed to file the affidavit evidence which is fundamental to her appeal. This is all without regard to the issue of whether such evidence could be admitted as fresh evidence on her appeal.
[30] Having regard to all these considerations and the fact that Ms Liu has failed to take any steps to prosecute her appeal in accordance with the directions of this Court, nor provided any credible reasons for her defaults, and in the absence of her appearing to prosecute her appeal, the overall interests of justice favour dismissal of her appeal for want of prosecution. I make such an order accordingly.
[31] I also make an order for the award of scale costs on a category 2B basis in favour of the respondent.
Solicitors:
M Nelson, Auckland
D Lester, Christchurch
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