Liyun Chen v Auckland Weihao Investment Limited

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 3/2022
[2022] NZSC 24

BETWEEN	LIYUN CHEN Applicant
AND	AUCKLAND WEIHAO INVESTMENT LIMITED Respondent

Court:	O’Regan, Ellen France and Williams JJ
Counsel:	Applicant in person D K Wilson for Respondent
Judgment:	17 March 2022

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant and the respondent were parties to an agreement for sale and purchase of land owned by the respondent, as well as a term loan agreement under which the respondent would provide vendor finance to the applicant. However, the sale did not proceed because the parties could not agree on the terms of the deed of priority and subordination. The applicant lodged a caveat and issued a proceeding against the respondent seeking the return of her deposit and damages for breach of the term loan agreement. The applicant applied to the High Court for an order that a caveat lodged in relation to the property not lapse. That application was declined.[1]
[1]Chen v Auckland Weihao Investment Ltd [2020] NZHC 2450.
The applicant appealed to the Court of Appeal against the High Court decision after being granted an extension of time to do so.[2] She applied to the Court of Appeal for an order dispensing with security for costs under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005. That application was dismissed by the Deputy Registrar of the Court of Appeal.
[2]Chen v Auckland Weihao Investment Ltd [2021] NZCA 421. The applicant also unsuccessfully applied to the Deputy Registrar for waiver of the filing fee. Her subsequent application for review of the waiver decision was declined: Chen v Auckland Weihao Investments Ltd [2021] NZCA 14.
The applicant then applied for a review of the Deputy Registrar’s decision. The review was undertaken by Miller J. He concluded that the Deputy Registrar’s decision was manifestly correct and adopted her reasons. The application for review was declined.[3]
[3]Chen v Auckland Weihao Investment Ltd [2021] NZCA 657 (Miller J).
The applicant now applies for leave to appeal to this Court against the decision of Miller J. The applicant wishes to argue if leave to appeal is granted that security for costs should have been dispensed with because the High Court judgment raised matters of genuine public interest. She says this is evidenced by the fact that the judgment has been published. She does not claim to be impecunious. She argues that the case raises issues about the conduct of the proceedings by the lawyers acting for the respondent and makes various accusations against them.
This Court must not grant leave to appeal unless it is necessary in the interests of justice for the Court to hear and determine the appeal.[4] Under s 74(2) of the Senior Courts Act 2016, the criteria for determining whether it is in the interests of justice for this Court to hear and determine a proposed appeal are whether the proposed appeal involves a matter of general or public importance or a matter of general commercial significance, or if a substantial miscarriage of justice may have occurred or may occur unless the appeal is heard.
[4]Senior Courts Act 2016, s 74(1).
It is clear that none of these criteria applies in the present case. Both the Deputy Registrar of the Court of Appeal and Miller J applied well-settled law about dispensation from security for costs, as set out in this Court’s decision in Reekie v Attorney‑General.[5] In particular, no point of general or public importance relating to dispensation of security for costs arises, and we are satisfied that there is no appearance of a substantial miscarriage of justice. If the applicant wishes to pursue her appeal to the Court of Appeal, she will need to meet the requirements of the Court of Appeal (Civil) Rules in relation to the payment of security for costs.
[5]Reekie v Attorney‑General [2014] NZSC 63, [2014] 1 NZLR 737.
The application for leave to appeal is dismissed.

Solicitors:
Raymond S Walker, Auckland for Respondent

CaseChat Overview and Summary

Liyun Chen sought leave to appeal to the Supreme Court of New Zealand against a decision of Miller J in the Court of Appeal, which declined her application for a review of the Deputy Registrar’s decision to dismiss her application for waiver of security for costs. Chen and Auckland Weihao Investment Limited were parties to an agreement for sale and purchase of land as well as a term loan agreement. The sale did not proceed because the parties could not agree on the terms of the deed of priority and subordination. Chen lodged a caveat and issued proceedings against Auckland Weihao Investment Limited seeking the return of her deposit and damages for breach of the term loan agreement. Chen’s application to the High Court for an order that a caveat lodged in relation to the property not lapse was declined. Chen appealed to the Court of Appeal against the High Court decision, and her application for an order dispensing with security for costs was dismissed by the Deputy Registrar of the Court of Appeal. Chen’s subsequent applications for waiver of the filing fee and for review of the waiver decision were also declined. Chen then applied for a review of the Deputy Registrar’s decision, which was declined by Miller J. Chen now applies for leave to appeal to the Supreme Court of New Zealand against Miller J’s decision.
The legal issues that the Supreme Court of New Zealand was required to decide were whether the appeal involved a matter of general or public importance or a matter of general commercial significance, or if a substantial miscarriage of justice may have occurred or may occur unless the appeal was heard. The Supreme Court of New Zealand found that none of these criteria applied in the present case. The Deputy Registrar of the Court of Appeal and Miller J applied well-settled law about dispensation from security for costs, as set out in the Supreme Court of New Zealand’s decision in Reekie v Attorney-General. The Supreme Court of New Zealand was satisfied that there was no appearance of a substantial miscarriage of justice. If Chen wished to pursue her appeal to the Court of Appeal, she would need to meet the requirements of the Court of Appeal (Civil) Rules in relation to the payment of security for costs.

The Supreme Court of New Zealand dismissed Chen’s application for leave to appeal against Miller J’s decision. The Court found that none of the criteria for determining whether it was in the interests of justice for the Court to hear and determine the appeal applied in the present case. The Deputy Registrar of the Court of Appeal and Miller J had applied well-settled law about dispensation from security for costs, as set out in the Supreme Court of New Zealand’s decision in Reekie v Attorney-General. The Court was satisfied that there was no appearance of a substantial miscarriage of justice. If Chen wished to pursue her appeal to the Court of Appeal, she would need to meet the requirements of the Court of Appeal (Civil) Rules in relation to the payment of security for costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established