Peng v Chan - [2024] NZHC 1214

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2155

[2024] NZHC 1214

BETWEEN
YAO WEI PENG also known as YAOWEI PENG

Applicant

AND

SHU-LIN CHAN, CHI-LAUNG KO and

FENG-YING KUO KO as trustees of the Kofu Family Trust and LISA CHIA-CHUAN KO and JEREMY CHI-HUA TSAI as

trustees of the Chihua Family Trust Respondents

Hearing: On the papers

Counsel:

Z Chen for Applicant

Judgment:

16 May 2024

JUDGMENT OF O’GORMAN J

[Interlocutory application on notice for leave to appeal]

This judgment was delivered by me on 16 May 2024 at 11 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors:
Righteous Law Ltd, Auckland

PENG v CHAN [2024] NZHC 1214 [16 May 2024]

[1] On 16 April 2024 the applicant, Yaowei Peng, filed an interim interlocutory application on notice seeking leave to appeal, along with an affidavit in support dated 22 April 2024. The grounds for the appeal are:

(a)the applicant had a defence of impossibility to the respondent’s summary judgment;

(b)the said defence also renders the specific performance sought by the respondent in the summary judgment application not a suitable remedy open to the respondent; and

(c)the District Court Judge’s refusal to allow the applicant to file his defence amounts to an erroneous decision to exercise discretion under r 12.2 of the District Court Rules 2014 and an injustice to the applicant.

[2] The application also lists a number of other grounds, including allegations that errors were made:

(a)relying upon “the evidence assessed in Knight Investments Ltd v Peng
[2024] NZHC 285”;

(b)failing to provide further opportunity for the applicant to respond to the summary judgment evidence and proceed with filing further evidence in the substantive appeal; and

(c)finding that further evidence would not affect the respondent’s contractual entitlement for the deposit.

[3] The applicant also alleges that I made a finding that the evidential threshold for the defence of impossibility is the same as a question of insolvency.

Legal principles

[4] In Greendrake v District Court of New Zealand,1 the Court of Appeal recognised the following considerations as relevant on an application for leave to appeal:

(a)a high threshold exists;

(b)the applicant must identify an arguable error of law or fact;

(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

(d)the circumstances must warrant incurring further delay; and

(e)the ultimate question is whether the interests of justice are served by granting leave.

[5] In the context of an application for leave to appeal under s 60 of the Senior Courts Act (in respect of a decision on appeal from the District Court), the intention of the legislature is that one appeal is normally sufficient:2
From this it follows that the case must show some features which justify a second appeal. The indicia mentioned by Salmond J are therefore still…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 1214
Decision Date: 16 May 2024

CaseChat Overview and Summary

Yaowei Peng applied for leave to appeal against a decision of the High Court that upheld the District Court’s summary judgment requiring him to pay a deposit in relation to a property purchase agreement. The applicant argued that the defence of impossibility rendered the specific performance remedy not suitable and that the District Court’s refusal to allow him to file his defence was an erroneous exercise of discretion. The applicant also claimed that errors were made in the assessment of evidence and in denying him the opportunity to respond to the summary judgment evidence.

The Court considered the principles for granting leave to appeal, including the requirement for an arguable error of law or fact of general or public importance, and whether the interests of justice are served by granting leave. The Court noted that the applicant’s inability to pay the deposit did not constitute a defence to a judgment in debt for such liabilities and found no errors in the judgment. The Court concluded that the high threshold for granting leave to appeal was not met as the issues were now moot and the interests of justice were not served by allowing the appeal.

The Court declined the application for leave to appeal. This decision effectively ends the possibility of an appeal against the District Court judgment requiring payment of the deposit, as the property purchase agreement has been cancelled. The vendor remains entitled to enforce payment of the deposit as a debt accrued due, distinct from any action for specific enforcement.

Orders