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)

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.
We commence with a brief summary of the procedural background.
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.
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.
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.
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.
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.
On 30 January 2023, the applicants applied for an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mao v Buddle Findlay

Details

AGLC: Mao v Buddle Findlay [2023] NZCA 393
Case: [2023] NZCA 393
Decision Date: 25 August 2023 at 10 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand dealt with an application by Liansen Mao and Quifen Lu to extend the time for applying for the allocation of a hearing date and filing their appeal. They sought this extension in relation to an appeal against a High Court judgment that had imposed a three-year restriction on them from commencing or continuing proceedings against the bank, the bank’s solicitors, and one of the bank’s directors. The Court of Appeal found that the application should be declined, and the appeal was consequently deemed abandoned. The applicants had a history of filing numerous proceedings against the respondents, all of which had been struck out or rejected for filing due to manifest defects. They had also failed to pay the numerous costs awards made against them by the High Court. The Court of Appeal held that granting the application would be contrary to the interests of justice due to the applicants’ disregard for court orders, the lack of realistic prospect of success of the proposed appeal, and the potential for the respondents to incur further costs without the possibility of recovery.

The central legal issue in this case was whether the applicants should be granted an extension of time to file their appeal. This involved considering the principles applicable to such an application, as set out in previous case law. The Court of Appeal found that the delay in filing the application, the conduct of the applicants, and the lack of merit in the proposed appeal were all relevant factors. The Court held that granting the extension would be contrary to the interests of justice given the applicants’ history of failing to comply with court orders and the likely futility of the proposed appeal. The Court of Appeal concluded that the overall interests of justice favoured declining the application for an extension of time.

The Court of Appeal declined the application for an extension of time to apply for the allocation of a hearing date and file the case on appeal. The applicants were also ordered to pay costs to the respondents for a standard appeal on a band A basis and usual disbursements. This decision reinforces the importance of complying with court orders and the consequences of failing to do so, particularly in cases involving repeated attempts to pursue meritless litigation against respondents.

Orders