Mao v Kim

[2021] NZSC 119

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

 SC 79/2021
 [2021] NZSC 119

BETWEEN	JIAWEN MAO Applicant
AND	HYUN BIN KIM First Respondent
AND	DUK YOUNG LEE Second Respondent

Court:	William Young, Glazebrook and Williams JJ
Counsel:	Applicant in person C E Lewis for Respondents
Judgment:	21 September 2021

JUDGMENT OF THE COURT

A        The application for leave to appeal is dismissed.

B        The applicant must pay the respondents costs of $2,500.
____________________________________________________________________

REASONS

1. On 8 June this year, Collins J dismissed an application by Ms Mao to review a decision by the Deputy Registrar in the Court of Appeal refusing to waive security for costs.[1]  Ms Mao now applies for leave to appeal that decision. 

   [1]Mao v Kim [2021] NZCA 230 [CA judgment].

2. The background to this matter is well set out in the judgment of Collins J.  We draw from his narrative. 

3. Ms Mao guaranteed a debt that her company owed to the respondents.  The debt was also secured over company land which, on the company’s default, was sold by the respondents.  A shortfall remained.  The respondents sought recourse to Ms Mao personally pursuant to her guarantee.  The respondents eventually applied to the High Court for an order adjudicating Ms Mao bankrupt.  She paid the shortfall and that application was withdrawn.  They then pursued her to recover their costs.  According to the terms of the guarantee, the respondents were entitled to indemnity costs in any enforcement action.  Ms Mao filed no defence and a costs order was made.

4. Ms Mao then appealed against that decision to the Court of Appeal.  In that Court, Collins J upheld a decision of the Deputy Registrar requiring Ms Mao to pay security for costs in the sum of $7,060.[2] 

   [2]CA judgment, above n 1.

5. Collins J dismissed Ms Mao’s application for review essentially for two reasons:

   (a)The financial information she provided was insufficient to establish her impecuniosity because, although she provided details of her personal bank accounts, she did not provide particulars of assets, other sources of funding, the financial circumstances of relatives or any prospects of obtaining legal aid.[3]

   (b)Ms Mao’s grounds in her substantive appeal do not challenge her liability under the guarantee to pay indemnity costs, they challenge instead the extent of her liability to meet the loan shortfall.  These grounds were irrelevant and, in any event, raised too late.[4]

   [3]At [25].

   [4]At [27].

6. The necessary threshold for bringing a civil appeal in relation to an interlocutory order is not met.  It is not in the interests of justice for leave to be granted.[5]  Nor does the appeal involve a matter of general or public importance, or of commercial significance.[6]  We see no reason to depart from the view expressed by Collins J on the merits of the substantive appeal and so see no risk that a substantial miscarriage of justice will occur unless leave is granted.[7] 

   [5]Senior Courts Act 2016, s 74(4).

   [6]Section 74(2)(a) and (c).

   [7]Section 74(2)(b).

7. The application for leave to appeal is dismissed.

8. The respondents have sought and will be entitled to costs of $2,500. 

Solicitors:
Hesketh Henry, Auckland for Respondents