Mao v Buddle Findlay

[2023] NZCA 393

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA660/2022
 [2023] NZCA 393

BETWEEN	LIANSEN MAO First Applicant QUIFEN LU Second Applicant
AND	BUDDLE FINDLAY First Respondent INDUSTRIAL AND COMMERCIAL BANK OF CHINA (NEW ZEALAND) LIMITED Second Respondent QIAN HOU Third Respondent

Court:	Gilbert and Goddard JJ
Counsel:	Applicants in person L A O’Gorman KC for Respondents
Judgment: (On the papers)	25 August 2023 at 10 am

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for the allocation of a hearing date and file the case on appeal is declined.

BThe applicants must pay costs to the respondents for a standard application on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Gilbert J)

1. This judgment responds to an application by the applicants made on 4 April 2023 for an extension of time to apply for the allocation of a hearing date and file the case on appeal.  The application was made pursuant to r 43(2) of the Court of Appeal (Civil) Rules 2005 (the Rules) because the three-month period allowed under r 43(1) expired and the appeal was deemed abandoned as at 24 March 2023.  For the reasons set out below, we are satisfied it would be contrary to the interests of justice to grant the application.

2. We commence with a brief summary of the procedural background. 

3. The applicants are husband and wife.  Ms Lu borrowed money from the second respondent, Industrial and Commercial Bank of China (New Zealand) Ltd (the bank), to purchase a property in Auckland.  After Ms Lu defaulted on the loan, the bank carried out a mortgagee sale and pursued a claim in China against both applicants for the balance of the outstanding debt.   

4. The first respondent, Buddle Findlay, is a firm of solicitors who acted for the bank.  The third respondent, Ms Hou, is a director of the bank.

5. Between them, the applicants have filed, or attempted to file, nine proceedings against the bank and others in connection with the steps taken by the bank to recover the amounts owed by Ms Lu.  These proceedings have all been struck out or rejected for filing because of their manifest defects.  The applicants have not paid any of the numerous costs awards made against them by the High Court.

6. The present appeal is against a judgment of Moore J delivered on 4 November 2022 making an order pursuant to s 166 of the Senior Courts Act 2016 restraining the applicants from commencing or continuing any proceedings in this or any related matter against the respondents for a period of three years.[1] 

   [1]Mao v Buddle Findlay [2022] NZHC 2885.

7. The applicants’ notice of appeal from this judgment is dated 13 November 2022 but it was not filed until 1 December 2022.  Security for costs was set at $7,060 and this was to be paid by the applicants by 19 January 2023. 

8. On 30 January 2023, the applicants applied for an order dispensing with security for costs.  This application was dismissed by the Deputy Registrar on 8 March 2023.  The applicants did not pay security for costs, and nor did they apply for the allocation of a hearing date or file a case on appeal.  As a result, Goddard J noted that the appeal was deemed to be abandoned as at 24 March 2023.

9. This prompted the present application for an extension of time under r 43(2) of the Rules.  The applicants also applied for a review of the Deputy Registrar’s decision declining to dispense with security for costs.

10. The principles to be applied on an application for an extension of time under r 43(2) of the Rules are well settled.  In Yarrow v Westpac New Zealand Ltd,[2] this Court stated that the Supreme Court’s decision in Almond v Read concerning applications for an extension of time to appeal under r 29A should be applied.[3]  Relevant considerations are likely to include the length of the delay, the reasons for it, the conduct of the parties (particularly the applicant), any prejudice or hardship to the respondent or others with a legitimate interest in the outcome, and the significance of the issues raised by the proposed appeal, both to the parties and more generally.[4]  The merits of an appeal may be relevant but a decision to refuse an extension of time based substantially on that ground should only be made where the proposed appeal is clearly hopeless.[5] 

    [2]Yarrow v Westpac New Zealand Ltd [2018] NZCA 601 at [4].

    [3]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.

    [4]At [38].

    [5]At [39].

11. The present application was brought shortly after expiry of the three-month period set out in r 43(1) of the Rules.  The delay may be explained by the applicants’ wish to seek review of the Deputy Registrar’s decision declining to dispense with security for costs.  We would not decline the present application on the grounds of unexplained delay alone, although it remains a factor to consider in the mix. 

12. We accept that a decision made under s 166 of the Senior Courts Act restraining a party from initiating or pursuing proceedings is important to both parties.  It restricts the applicants’ access to the courts.  On the other hand, the purpose of the order is to protect the respondents from meritless proceedings that are frivolous, vexatious and an abuse of the court’s process. 

13. While it is usually difficult to make any assessment of the merits of a proposed appeal in the context of an application to extend time, it appears to us that the proposed appeal in this case has little realistic prospect of success. 

14. The applicants’ conduct is also relevant.  They have shown complete disregard for court orders by not paying any of the numerous costs awards made against them.  We can see no reason why security for costs would be dispensed with on this appeal.  Otherwise, the respondents would be put to yet more costs with no realistic prospect of recovery in the event they are successful on any appeal, as seems likely.  There is no indication that the applicants will pay security for costs if the extension of time is granted. 

15. In all the circumstances, we consider the overall interests of justice strongly favour the application being declined.

Result

1. The application for an extension of time to apply for the allocation of a hearing date and file the case on appeal is declined.

2. The applicants must pay costs to the respondents for a standard appeal on a band A basis and usual disbursements.

Solicitors:
Couch Harlowe Kovacevich, Auckland for Respondents