Mao v Kim

[2023] NZHC 3145

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001881

[2023] NZHC 3145

UNDER

the Insolvency Act 2006

IN THE MATTER OF

the bankruptcy of JIAWEN MAO

BETWEEN

JIAWEN MAO

Applicant

AND

HYUN BIN KIM and DUK YOUNG LEE

Respondents

Hearing:

On the papers

Appearances:

J Mao in person

C V Fourie for the Respondents

Judgment:

9 November 2023

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 9 November 2023 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Hesketh Henry, Auckland Copy for: J Mao

MAO v KIM [2023] NZHC 3145 [9 November 2023]

Introduction

[1]    The applicant, Jiawen Mao, has applied for a “stay of execution of all the judgments entered against the applicant under CIV-2021-404-1881”.

[2]In terms of her grounds, she refers to:

(a)a statement of claim dated 27 July 2023 filed in CIV-2023-404-1562;

(b)an affidavit from the Inland Revenue Department filed in CIV-2023- 404-1562; and

(c)an affidavit affirmed on 2 October 2023 filed in CIV-2021-404-1475 / 1055 and exhibits to that affidavit.

[3]    The Court has an inherent power to strike out an interlocutory application where it constitutes an abuse of the Court’s process, where that is not inconsistent with the rules.1 This is not affected by the fact that the High Court Rules 2016 also empower the Court to strike out interlocutory applications that are plainly an abuse of process.2

[4]    I consider it appropriate to exercise that power to strike out the application for stay of execution, for the following reasons.

[5]    There has been only one judgment entered against Ms Mao in this proceeding. In a judgment dated 1 November 2022, the Court dismissed the following applications made by her:3

(a)interlocutory application to set aside judgment creditors’ (respondents’) bankruptcy notice dated 29 April 2022;

1      Siemer v Stiassny [2011] NZCA 466 at [6], Tamihere v Commissioner of Inland Revenue No.2

[2018] NZHC 266 at [7]; Gower v FTG Securities Ltd [2020] NZHC 1105 at [15].

2      High Court Rules 2016, r 7.42A.

3      Mao v Kim & Lee [2022] NZHC 2836.

(b)interlocutory application for orders disqualifying Hesketh Henry from acting for the judgment creditors dated 9 June 2022; and

(c)memorandum to stay the proceeding dated 4 September 2022.

[6]    The Court held that the respondents were entitled to their costs and reasonable disbursements but, through an administrative error, no costs order has been made.

[7]    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

[8]    Ms Mao’s application is misconceived as there are no orders in the judgment to be enforced by the respondents. The orders were to dismiss Ms Mao’s applications.

[9]    Moreover, Ms Mao did not appeal against the judgment. The time for appealing against the judgment has expired.

[10]   Further, the grounds that Ms Mao advances in the application and supporting affidavit do not provide any basis for a stay of execution. She relies on allegations made in a separate proceeding in this Registry, with the file number CIV-2023-404-1562. Allegations made in another proceeding that have not yet been determined would not provide a basis for a stay of execution of the judgment, were there any orders to stay.

[11]   She further relies on an affidavit filed in CIV-2021-404-1475 / 1055 in support of her application to stay execution of orders for costs. That application was struck out as an abuse of process by Lang J on 1 November 2023.5

[12]   For all the above reasons, the application for stay of execution is struck out as an abuse of the Court’s process.

4      Rule 17.29.

5      Mao v Hesketh Henry [2023] NZHC 3070.

[13]   The respondents have been required to respond to Ms Mao’s application with a notice of opposition. Ms Mao is ordered to pay their costs for the notice of opposition on a 2B basis, and the filing fee, to be fixed by the Registrar.

Associate Judge Gardiner