Richard Zhao Lawyers Limited v Chen

[2016] NZCA 540

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA293/2016
[2016] NZCA 540

BETWEEN	RICHARD ZHAO LAWYERS LIMITED Appellant
AND	JIE PING CHEN Respondent

CA502/2015
BETWEEN	RICHARD ZHAO LAWYERS LIMITED First Appellant
RICHARD ZHAO Second Appellant
AND	THE FAMILY COURT AT AUCKLAND First Respondent
JIE PING CHEN Second Respondent

Court:

Randerson, Wild and French JJ

Counsel:

F C Deliu and R Zhao for Appellants
P F Chambers for Respondent Chen

Judgment:

(On the papers)

17 November 2016 at 10.30 am

JUDGMENT OF THE COURT

AThe decision of Winkelmann J declining to grant the appellant’s application for dispensation of payment for security for costs is set aside.

BThe appellant’s application is remitted to the Registrar for consideration and determination.

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REASONS OF THE COURT

(Given by French J)

1. Under r 35 of the Court of Appeal (Civil) Rules 2005 an appellant may apply to the Registrar for payment of security for costs to be dispensed with.  If the Registrar declines the application then the appellant may ask for a Judge of this Court to review the Registrar’s decision.

2. The issue in this case is whether a single judge can determine a dispensation application in the first instance.

3. It has arisen in the following context.

4. On 22 July 2016 counsel for the appellant, Mr Deliu, applied to the Registrar under r 35 for dispensation from payment of security for costs in appeal CA293/2016.  Alternatively, he sought a reduction of the amount of security.

5. Subsequently, Mr Deliu requested a conference call.  The reason for this request was that Mr Deliu wanted the appeal to be heard with another related appeal (CA502/2015) that had been scheduled for hearing on 29 September 2016.[1]  He also wanted an order that a hearing in the High Court be transcribed.

   [1]The appeal CA293/2016 is against judgments of Bell AJ dismissing a bankruptcy application, refusing to recall his judgment, and granting costs: Richard Zhao Lawyers Ltd v Jie Ping Chen [2016] NZHC 1134; Richard Zhao Lawyers Ltd v Jie Ping Chen HC Auckland CIV-2016-404-397, 10 June 2016 (Minute of Bell AJ); and Richard Zhao Lawyers Ltd v Jie Ping Chen HC Auckland CIV-2015-404-2086, 16 June 2016 (Minute of Bell AJ).  The appeal CA502/2015 is against a costs decision of Asher J in the High Court at Auckland: Richard Zhao Lawyers Ltd v Family Court at Auckland [2015] NZHC 1837.

6. The conference call was duly convened on 9 September 2016 by Winkelmann J, who was the Judge presiding over the hearing of the related appeal.  Justice Winkelmann ordered the appeals be heard together but declined the application for a transcript.[2]

   [2]Richard Zhao Lawyers Ltd v Family Court at Auckland CA502/2015 and CA293/2016, 12 September 2016 [Minute 1 of Winkelmann J].

7. During the course of the conference call Winkelmann J raised the issue of Mr Deliu’s application for dispensation from payment of security for costs.  After hearing from counsel, the Judge dismissed the application.  The main ground of the application was that security had already been paid in respect of the related appeal and accordingly it was unjust to require the appellant to pay two lots of security.  Justice Winkelmann considered that, although the two appeals were related, the commonality of issues was not such as would justify reducing or dispensing with payment of security for costs.[3]

   [3]At [4].

8. Mr Deliu did not question Winkelmann J’s jurisdiction to determine the application for dispensation during the conference call.  He says he was not expecting the issue of security for costs to be raised and was taken by surprise.

9. However, later he did question the Judge’s jurisdiction.  He also complained of having received insufficient notice that security for costs would be argued.  A further conference call was then convened with Winkelmann J on 22 September 2016.  It was agreed that in order for the appeal to be able to proceed on 29 September 2016, the appellant would pay the security for costs into Court but on condition it not be released to the respondent until such time as the challenges to  Winkelmann J’s dispensation decision were resolved.[4]   It was also agreed the matter could be dealt with on the papers by a panel of three judges acting under s 61A(2) of the Judicature Act 1908.

   [4]Richard Zhao Lawyers Ltd v Family Court at Auckland CA502/2015 and CA293/2016, 22 September 2016 [Minute 2 of Winkelmann J] at [5].

10. We are satisfied Winkelmann J did not have jurisdiction to deal with the application for security for costs.  Under s 61A(1) of the Judicature Act a single Judge of this Court may make such incidental orders and give such incidental directions as he or she thinks fit.  In Siemer v Stiassny the Supreme Court left open the possibility that the powers conferred by s 61A(1) could be invoked to alter the security for costs fixed.[5]  However, that was only in circumstances where an application has not been made to the Registrar.  In this case, there was an extant application to the Registrar that had never been determined.

    [5]Siemer v Stiassny [2013] NZSC 115 at [8]–[10] and fn 4. See also: Siemer v Stiassny [2013] NZSC 110 at fn 4; Siemer v Official Assignee [2014] NZSC 42 at [5]; and Siemer v Registrar of the Supreme Court [2014] NZSC 125 at [11].

11. Having reached this conclusion, it is not necessary for us to consider the arguments raised by Mr Deliu about alleged breaches of natural justice.  Suffice it to say we consider them to be ill-founded.  It was Mr Deliu who wanted the appeal brought on for hearing at very short notice.  He should have appreciated that security for costs was inextricably entwined with that issue.  Further, having made the application for dispensation, he must have known the grounds for it and been ready to argue them.  He was given an opportunity to be heard.

12. The outcome of the referral to us under s 61A(2) of the Judicature Act is that the decision of Winkelmann J declining the application for dispensation of payment of security for costs is set aside and the matter remitted to the Registrar for determination.

Solicitors:
Richard Zhao Lawyers Ltd, Auckland for Appellants
Amicus Law, Auckland for Appellants
Henley-Smith Law, Auckland for Respondent Chen
Crown Law Office, Wellington for First Respondent in CA502/2015