Richard Zhao Lawyers Limited v Chen

The Court of Appeal of New Zealand heard an appeal against a decision by Winkelmann J declining an application for dispensation of payment for security for costs in two related appeals. The appellants, Richard Zhao Lawyers Limited and Richard Zhao, sought the dispensation in relation to costs awarded to the respondents, Jie Ping Chen and the Family Court at Auckland, in proceedings that had originated in the High Court at Auckland. The Court of Appeal found that Winkelmann J did not have jurisdiction to determine the application for security for costs, as the application had already been made to the Registrar and had not been determined. As a result, the decision of Winkelmann J was set aside, and the matter was remitted to the Registrar for consideration and determination.

The key legal issue before the Court of Appeal was whether a single judge can determine a dispensation application in the first instance. The Court of Appeal found that under s 61A(1) of the Judicature Act, a single judge of the Court of Appeal may make incidental orders and give incidental directions, but only in circumstances where an application has not been made to the Registrar. In this case, an application had already been made to the Registrar, and it had not been determined. Therefore, Winkelmann J did not have jurisdiction to determine the application for security for costs. The Court of Appeal also noted that the arguments raised by the appellants about alleged breaches of natural justice were ill-founded, as the appellants had not appreciated that security for costs was inextricably entwined with the issue of the appeal being brought on for hearing at short notice.

The Court of Appeal found that the decision of Winkelmann J declining the application for dispensation of payment of security for costs was set aside, and the matter was remitted to the Registrar for determination. The Court of Appeal did not consider it necessary to consider the arguments raised by the appellants about alleged breaches of natural justice, as it found that the appellants had not appreciated that security for costs was inextricably entwined with the issue of the appeal being brought on for hearing at short notice. The Court of Appeal also found that the appellants had been given an opportunity to be heard, and that they had made the application for dispensation and must have known the grounds for it and been ready to argue them.