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

[2021] NZCA 36

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA643/2020
 [2021] NZCA 36

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

Counsel:	Applicant in person D T Broadmore and L M Edginton for Respondents
Judgment: (On the papers)	2 March 2021 at 11.30 am

JUDGMENT OF MILLER J
(Review of Registrar’s Decision)

AThe application for review of the Registrar’s decision not to dispense with security for costs is declined.

BPayment of security of $7,060 must be made on or before Tuesday 16 March 2021.

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REASONS

1. This judgment responds to an application to review the Registrar’s refusal to waive security for costs.  The Registrar was correct.  My reasons will be brief.

2. The decision under appeal was given by Whata J in the form of a minute issued on 28 October 2020.  The Judge struck out a proceeding in which Mr Mao challenged a settlement with the respondent Bank.  It was a fourth proceeding in litigation challenging the Bank’s decision to recover a shortfall on a mortgagee’s sale in New Zealand by obtaining a judgment and freezing orders in China.  The proceedings have been struck out as untenable or abusive, and Whata J considered this proceeding was either a rerun of those proceedings or the claims ought to have been brought earlier.

3. Mr Mao says that his appeal is a matter of public interest and further that the bank abused court powers by obtaining freezing orders in China.  He also says that the bank has adequate security under the freezing orders.

4. I agree with the Registrar that it has not been shown that the respondent should have to defend this appeal without security.  Mr Mao does not claim to be impecunious, and it is not apparent to me that his appeal raises any question of public interest.  Nor do I accept that the bank already has security; it maintains that assets affected by the freezing order are of insufficient value to recover amounts owed to the bank and the frozen assets may not necessarily be available for a costs order made in New Zealand.  There is force in the bank’s submission that it needs the protection afforded by security because Mr Mao’s conduct is vexatious.

5. The application is dismissed.  The Registrar extended time for payment of $7,060 until 5 February.  I will extend time for payment of that sum until 16 March 2021.

Solicitors:
Buddle Findlay, Auckland for Respondents