Mao v Industrial and Commercial Bank of China (New Zealand) Limited

[2021] NZCA 563

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA643/2020
 [2021] NZCA 563

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

Court:	Clifford and Courtney JJ
Counsel:	Applicant in person D T Broadmore and L M Edginton for First and Second Respondents
Judgment:	26 October 2021 at 11 am

JUDGMENT OF THE COURT

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

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

1. In a minute dated 28 October 2020 Whata J struck out a statement of claim filed by Mr Mao against Industrial and Commercial Bank of China (New Zealand) Ltd (ICB).[1]   He considered that the statement of claim was an abuse of the Court’s process, being the fourth attempt by Mr Mao to litigate a claim that ICB had wrongfully obtained freezing orders in China over his assets.  Mr Mao’s request that security for costs be dispensed with was refused. His review of the decision not to dispense with security for costs was dismissed and he was directed to pay security of $7,060.[2]  His application to the Supreme Court for leave to appeal that decision was dismissed.[3]

   [1]Mao v Industrial and Commercial Bank of China (New Zealand) Ltd HC Auckland, CIV‑2020‑404-1968, 28 October 2020.

   [2]Mao v Industrial and Commercial Bank of China (New Zealand) Ltd [2021] NZCA 36.

   [3]Mao v Industrial and Commercial Bank of China (New Zealand) Ltd [2021] NZSC 53.

2. While the question of security for costs was being resolved the Registrar suspended the operation of r 43 of the Court of Appeal (Civil) Rules 2005 four times between February and May 2021.[4]  Mr Mao tried, unsuccessfully, to secure a further extension before the suspension lapsed on 10 June 2021.  The appeal was deemed to be abandoned on 11 June 2021.[5]  On 1 July 2021 Mr Mao filed the present (amended) application for an extension of time to apply for the allocation of a hearing date and filing of the case of appeal.[6]

   [4]Court of Appeal (Civil) Rules 2005, rr 43(1B)(c) and (d).

   [5]Rule 43(1).

   [6]Rule 43(2).

3. This Court has previously identified the factors relevant to the exercise of the discretion to extend time in these circumstances.  They include the reason for the appeal not having been prosecuted diligently and whether the proposed appeal is genuinely arguable.[7]  Although there may be some latitude given to litigants in person,[8] this is less likely where the applicant has extensive experience in the appellate jurisdiction.[9]

   [7]Schmidt v Ebada Property Investments Ltd [2012] NZCA 452 at [7], citing Harris v Davies [2007] NZCA 358 at [8].

   [8]Rabson v Gallagher [2011] NZCA 204 at [9].

   [9]Erwood v Official Assignee [2015] NZCA 620 at [9].

4. Mr Mao does not give any clear explanation for the delay of so many months in paying security and applying for the allocation of a hearing date and filing of the case on appeal.  In his submissions he refers only to the fact of his property having been frozen in China (by ICB) and being prevented by Covid-19 from travelling to New Zealand.  However, as ICB points out, the freezing order was removed from Mr Mao’s assets in November 2019.  And an inability to travel to New Zealand would not have prevented payment of security for costs or the preparation of an electronic case on appeal.  We are not satisfied that there is any acceptable reason for the delay.

5. Nor do we accept that there is any apparent merit in the appeal.  The statement of claim that Whata J struck out was, as noted, the fourth such effort to bring proceedings which were substantially the same.  Mr Mao and his wife, Ms Lu, have been engaged in litigation with ICB since 2019 in respect of Ms Lu’s default under a loan made to her by ICB.  ICB began proceedings against Mr Mao and Ms Lu in China and, in the context of those proceedings, obtained freezing orders against their assets.  The proceeding against Mr Mao was dismissed and the freezing orders against his bank accounts and securities and against Ms Lu’s bank accounts were discharged in November 2019.

6. Mr Mao and Ms Lu subsequently brought proceedings against ICB in New Zealand based on a general complaint by Ms Lu that ICB had represented to her that it would lend more money after she had two years of repayment history but then refused to do so.  Those proceedings were struck out by Fitzgerald J.[10]  Ms Lu’s application for an extension of time to appeal that decision was refused on the ground that the proposed appeal was clearly hopeless.[11]  Leave to appeal that decision was declined.[12]  Throughout 2020 Mr Mao and Ms Lu filed four sets of proceedings against IBC, which were all essentially attempts to relitigate the claim that had been struck out by Fitzgerald J.  The fourth of these was the statement of claim that Whata J struck out and which is the subject of the current appeal that Mr Mao wishes to advance. 

   [10]Lu v Industrial and Commercial Bank of China (New Zealand) Ltd [2020] NZHC 402.

   [11]Lu v Industrial and Commercial Bank of China (New Zealand) Ltd [2020] NZCA 538.

   [12]Lu v Industrial and Commercial Bank of China (New Zealand) Ltd [2021] NZSC 33.

7. We are satisfied that the proposed appeal is not genuinely arguable and Mr Mao’s continued efforts to relitigate the same issues that have already been determined are unfairly prejudicial to ICB. 

8. The application is declined.

Solicitors:
Buddle Findlay, Auckland for First and Second Respondents