Mao v Hesketh Henry

[2023] NZHC 3070

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1055

[2023] NZHC 3070

BETWEEN

LIANSEN MAO

Plaintiff

AND

HESKETH HENRY

First Defendant

AND

HYUN BIN KIM

Second Defendant

AND

DUK YOUNG LEE

Third Defendant

Cont:/

Hearing:

1 November 2023

Counsel:

Ms J Mao in person (via AVL)

A L Clark-Tahana for Hesketh Henry

A Piatine for A Kim and Cooper & Co Real Estate Ltd R D Butler for H B Kim and D Y Lee

Judgment:

1 November 2023

JUDGMENT OF LANG J

[application for stay of execution]

This judgment was delivered by Justice Lang On 1 November 2023 at 3.00 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors:

Hesketh Henry, Auckland

MacKenzie Elvin Law, Tauranga Heaney & Partners, Auckland Copy to Plaintiffs

MAO v HESKETH HENRY [2023] NZHC 3070 [1 November 2023]

AND  CIV-2021-404-1475

BETWEEN

JIAWEN MAO
Plaintiff

AND

HESKETH HENRY

First Defendant

AND

ARA KIM/COOPER & CO REAL ESTATE LIMITED

Second Defendant

AND

HYUN BIN KIM

Third Defendant

AND

DUK YOUNG LEE

Fourth Defendant

[1]    On 22 August 2022, Paul Davison J struck out the claims advanced by Ms Mao and Mr Augustine Lao in these proceedings.1 On 18 April 2023, Paul Davison J awarded costs in favour of the defendants in each proceeding.2

[2]    Ms Mao has now filed an application for stay of execution of the orders for costs. The application is opposed by all respondents. They ask the Court to strike the application out as an abuse of the Court’s process.

[3]    The Court has the inherent jurisdiction to strike out a proceeding or application where it constitutes an abuse of the Court’s process. This is not affected by the fact that the High Court Rules 2016 also empowers the Court to strike out proceedings in prescribed circumstances.3 I consider it appropriate to exercise the inherent jurisdiction to strike out the application for stay of execution for the reasons that follow.

[4]    The Court may grant a stay of enforcement of a judgment or order where a substantial miscarriage of justice would be likely to result if the judgment or order were enforced.4 However, Ms Mao did not appeal against either the decision striking out his claims or the costs decision. The time for appealing against those judgments has now expired. It follows that Ms Mao remains liable under the costs judgment and it must now be treated as final. The defendants are entitled to the benefit of the orders they have obtained. No miscarriage of justice would result from the orders for costs being enforced.

[5]    Further, the grounds that Ms Mao advances in the application and supporting affidavit do not provide any basis for a stay of execution. To the extent they can be discerned, she appears to rely on allegations made in a separate proceeding filed in this Registry having the file number CIV 2023-404-1562. Allegations made in another proceeding that has not yet been determined cannot affect Ms Mao’s liability for costs under the judgment issued by Davison J on 18 April 2023.

1      Mao v Hesketh Henry [2022] NZHC 2084.

2      Mao v Hesketh Henry [2023] NZHC 813.

3      High Court Rules 2016, r 15.1(4).

4      Rule 17.29.

[6]    The application for stay of execution is struck out as an abuse of the Court’s process.

Lang J