Mao v Buddle Findlay
[2023] NZHC 3776
•19 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-001054
[2023] NZHC 3776
BETWEEN LIANSEN MAO
First Plaintiff
AND
QUIUFEN LU
Second Plaintiff
AND
BUDDLE FINDLAY
First Defendant
AND
INDUSTRIAL AND COMMERCIAL BANK OF CHINA (NEW ZEALAND) LIMITED
Second Defendant
AND
QUIN HOU
Third Defendant
AND
CHARLY JIANG
Fourth Defendant
Hearing: (On the papers) Counsel:
First and Second Plaintiffs in Person
Andrijana Milosavljevic for the First to Third Defendants No appearance for the Fourth Defendant
Judgment:
19 December 2023
JUDGMENT OF MOORE J
[Application for stay of proceedings]
This judgment was delivered by me on 19 December 2023 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar / Deputy Registrar Date:
MAO & ANOR v BUDDLE FINDLAY & ORS [2023] NZHC 3776 [19 December 2023]
Introduction
[1] The plaintiffs, Liansen Mao and Qiufen Lu, defaulted on a loan from the second defendant, the Industrial and Commercial Bank of China (New Zealand) Ltd (“the Bank”). The plaintiffs have together filed a total of nine proceedings against the Bank and/or related parties in connection with the Bank’s attempts to recover the sum. The eighth was filed against the Bank together with its representatives Buddle Findlay (the first defendant), the director and Chief Executive Officer (the third defendant), and a former employee (the fourth defendant).
[2] On 22 March 2022, Associate Judge Andrew (as he then was) granted the first to third defendants’ applications for strike out and summary judgment of the proceeding (“Strike Out Judgment”).1 He adjourned an application for an order under s 166 of the Senior Courts Act 2016 restraining the plaintiffs from commencing or continuing these or related proceedings (“Prevention Order”), on the basis that the jurisdiction could only be exercised by a High Court Judge.
[3] On 4 November 2022, I declined the plaintiffs’ applications to set aside and stay the Strike Out Judgment and granted the first to third defendants’ application for a Prevention Order (“Prevention Order Judgment”).2
[4] An appeal against the Prevention Order Judgment was deemed abandoned on 24 March 2023 as the plaintiffs failed to pay security for costs. The plaintiffs subsequently filed applications for an extension of time to appeal and for review of the Registrar’s decision declining to dispense with security for costs, both of which are ongoing.
[5] On 30 October 2023, I delivered a judgment as to costs on both the Strike Out Judgment and the Prevention Order Judgment.3 I ordered that the plaintiffs were to pay the first and second defendants indemnity costs on the basis that the plaintiffs acted improperly in bringing and continuing the proceeding.
1 Mao v Buddle Findlay [2022] NZHC 521 [Strike Out Judgment].
2 Mao v Buddle Findlay [2022] NZHC 2885 [Prevention Order Judgment].
3 Mao v Buddle Findlay [2023] NZHC 3036 [Costs Judgment].
[6] It was subsequently brought to my attention that the plaintiffs had, in the intervening period on 13 June 2023, filed an interlocutory application for orders staying the enforcement of the Prevention Order Judgment. A memorandum of counsel in opposition was filed by the first to third defendants on 23 June 2023.4
[7] Having reviewed these documents, and given the background to this case, I am satisfied that the interlocutory application may be dealt with on the papers.
Plaintiffs’ position
[8] The grounds on which the application is brought are not altogether straightforward to follow, though appear to relate to the application for leave to appeal the Prevention Order Judgment. They are reproduced in full below:
1.Plaintiffs applied Notice to appeal at Court of Appeal dated 1.12.2022.
2.Defendants did not Honest to this Court regarding the letter of undertaking to Chinese Court that this Court had not fully aware the situation as in all material time 3rd defendant never swear any affidavit on behalf of herself the reason why she did not disclosure this important information to this Court especially the first proceeding in 2020 that determined by Justice Fitz.
3.Silence is a manner of misleading and if plaintiffs aware the undertaking to damages information earlier, plaintiffs will not mislead to proposed the wrong pleading to this Court earlier.
4.Plaintiffs tried to law-suit ICBCNZ in Chinese Court but refused by Chinese Court as ICBCNZ had no asset in China for plaintiffs to freeze in China.
5.Thus, the registrar of Chinese Court advised plaintiffs to law-suit ICBCNZ in New Zealand.
6.Plaintiffs did request ICBCNZ whether ICBC in China will help them to raise 30million RMB as the freezing order for plaintiffs, ICBCNZ refused to reply any email.
7.The Judge that taken the case in Chinese Court, Justice Bian who allowed the freezing order for ICBCNZ admitted HH mixed up ICBCNZ and ICBC in China.
4 In my minute of 31 October 2023, I incorrectly recorded that the plaintiffs’ interlocutory application was filed on 4 November 2022 and directed any notice of opposition to be filed within seven working days. In fact, as noted, the documents in question were filed in June 2023 and no further material was required. I apologise to counsel for this oversight.
8.ICBCNZ is the New Zealand based company. If this Court not allow this application leave to appeal to Court of Appeal, then This Court should order 30million RMB asset to be frozen by plaintiffs either in China or New Zealand in order for plaintiffs to proceed the law-suit against ICBCNZ in Chinese Court.
9.ICBCNZ had low credibility that ICBCNZ silence on the letter undertaking to damages that signed at 19.5.2019 that discovered by plaintiffs at 4.8.2022.
10.The freezing order that made in China is not according to Chinese Law rather using the social network of ICBC China that do not comply the Chinese Law as per affidavits that provided by Ms Yang, the lawyer of ICBCNZ in China under CIV 2022-404-1536.
11.Under loan agreement between ICBCNZ and Ms Lu, only New Zealand law will be used as one of the conditions for ICBCNZ to operate in New Zealand and ICBCNZ repudiated the loan agreement and did not follow the guidelines of Reserved bank of New Zealand..
12.During the recent Chinese Court hearing, plaintiffs just aware that the lawyer that appointed in China had been representing ICBC and ICBCNZ in all material time and the Judgment in China Dominant by ICBCNZ with the influence of ICBC.
13.ICBCNZ frozen plaintiff’s pension and even in breach the Chinese law where provide minimum lifestyle to the human and ICBCNZ is in breach humanity.
Defendants’ position
[9]The first to third defendants oppose the stay application on the grounds that:
(a)The Prevention Order Judgment is non-executory.
(b)The plaintiffs say the stay is necessary so that they can pursue the appeal of the Prevention Order Judgment. However, that appeal was deemed abandoned and there is no merit to the application for an extension of time nor to the appeal itself.
(c)The s 166 order requires the plaintiffs to obtain leave before commencing or continuing proceedings against the defendants. A stay would be prejudicial to the defendants as it enables the plaintiffs to continue the proceeding without obtaining leave.
(d)The matters raised by the plaintiffs go to the substance of the proceeding and have already been raised and considered in these and other proceedings.
(e)Neither the balance of convenience nor the interests of justice support granting a stay.
(f)Rule 7.52 of the High Court Rules 2016 (“the Rules”) applies. The plaintiffs have earlier failed on an interlocutory application for a stay (of the Strike Out Judgment) and therefore must obtain leave to apply for a similar order again.
(g)Alternatively, the application is plainly an abuse of process and can be struck out pursuant to rr 7.42A and 15.1.
Relevant law
[10] Rule 7.52 of the Rules imposes a restriction on second interlocutory applications in specific circumstances. It provides:
7.52 Limitation as to second interlocutory application
(1)A party who fails on an interlocutory application must not apply again for the same or a similar order without first obtaining the leave of a Judge.
(2)A Judge may grant leave only in special circumstances.
…
[11] Rule 7.42A, meanwhile, governs the situation in which the Judge considers an interlocutory application is plainly an abuse of process:
7.42A Judge’s powers to make orders and give directions on interlocutory applications
…
(2) The Judge may, on the Judge’s own initiative, make an order or give directions to ensure that the interlocutory application is disposed of or, as the case may be, proceeds in a way that complies with these rules, including (without limitation) an order under rule 15.1 that the application be struck out, stayed, or stayed on conditions.
…
[12]Rule 15.1 relevantly provides:
15.1 Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
…
Discussion
[13] I am not satisfied that r 7.52 applies in this instance. That rule is aimed at addressing the situation in which a party attempts to relitigate, within the same proceeding, an issue decided by an interlocutory ruling.5 Here, while the order sought is the same and there may be some overlap in terms of the grounds in support, the subject of the order is different. The plaintiffs’ first interlocutory application was for a stay of the Strike Out Judgment. The second is for a stay of the Prevention Order Judgment. It would be an unusual and harsh result if an unsuccessful application for stay of one judgment precluded an application for stay of another within the same proceedings. It follows I am not satisfied the plaintiffs are required to obtain leave under r 7.52 to apply for a second stay.
[14] There is, however, a fundamental flaw in the plaintiffs’ application. The Prevention Order made on 4 November 2022 restrains the plaintiffs from commencing or continuing proceedings in this matter (and any related matter) against the first, second and third defendants, in any court or tribunal for a period of three years.6 Leave is required to continue the proceeding. No such application for leave has been filed.
5 Stephenson v Jones [2014] NZHC 1604 at [7].
6 Prevention Order Judgment, above n 2, at [44].
[15] In any event, I would not have granted the plaintiffs leave to continue the proceeding. The grounds advanced by the plaintiffs are almost verbatim to submissions advanced and rejected in the ninth proceeding. Wylie J on 30 March 2023 declined leave to continue that proceeding on the basis that it fell squarely within the scope of the Prevention Order, lacked merit, and was an abuse of process.7 The same reasoning would have applied here.
[16] I record for completeness that even if leave had been granted, I would have been satisfied that the interlocutory application ought to be struck out under r 15.1 on the basis that it is plainly an abuse of process.
[17] The applications for an extension of time (to appeal the Prevention Order Judgment) and for review of the Registrar’s decision as to security for costs are equally unmeritorious. It is well time that these proceedings are brought to an end and the defendants are freed from the continual vexation and harassment.
Result
[18]The interlocutory application for an order staying Mao v Buddle Findlay & Ors
[2022] NZHC 2885 is declined.
[19] Leave is reserved to the defendants to seek such further orders in relation to costs.
Moore J
Barristers/Solicitors:
Couch Harlowe Kovacevich, Auckland
Copy to:
The Plaintiffs
7 Mao v Industrial and Commercial Bank of China (New Zealand) Ltd [2023] NZHC 673.
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