Royal v Zheng

[2025] NZHC 1326

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2025-409-30

[2025] NZHC 1326

BETWEEN

JIMMY ROYAL

Plaintiff

AND

QI ZHENG

Defendant

Hearing:	On the papers
Appearances:	K M Anderson for Plaintiff No appearance for Defendant
Judgment:	26 May 2025

JUDGMENT OF OSBORNE J

Renewal of a freezing order

[1]        In this proceeding the plaintiff seeks summary judgment against the defendant for sums alleged to be owed by the defendant in repayment of loans.

[2]        On 12 March 2025 this Court, on an interlocutory application without notice, made a freezing order in respect of an identified property in Christchurch and “any assets located in New Zealand”. A term of the freezing order was that it would have no effect after 28 April 2025 unless on that date it was continued or renewed.

[3]        On 28 April 2025, the proceeding was called in Court and directions made in relation to the determination of the application for summary judgment. The need for the freezing order to be continued or renewed was overlooked.

ROYAL v ZHENG [2025] NZHC 1326 [26 May 2025]

[4]        The oversight was brought to the attention of the Court by Ms Anderson on 6 May 2025 and referred to me for consideration.

Discussion

[5]        In the strict terms of the freezing order, the order was to have no effect after 28 April 2025, unless on that date it was continued or renewed.1

[6]        The apparent finality of that aspect of the freezing order is however not determinative. Rule 1.19 High Court Rules 2016 provides for extension of time including on an application made after the expiration of the time appointed or fixed. The rule provides:

1.19     Extending and shortening time

(1)The court may, in its discretion, extend or shorten the time appointed by these rules, or fixed by any order, for doing any act or taking any proceeding or any step in a proceeding, on such terms (if any) as the court thinks just.

(2)The court may order an extension of time although the application for the extension is not made until after the expiration of the time appointed or fixed.

[7]        On its plain terms, the provision in r 1.19(2) gives the Court, on the facts of this case, a discretion to extend time.

[8]        I note by way of precedent, the line of cases in which the Court has granted an extension of time for the giving of a notice requiring a (civil) jury trial.   In  Smith     v Television New Zealand Ltd the plaintiff had not given a jury notice within the required period.2 Heron J applied the remedial provisions of the predecessor provision to r 1.19 (then r 6) and the Court accepted the late jury notice. His Honour identified, as the test for exercising the discretion, that the overall merits must require the extension.3

1      High Court Rules 2016, r 32.6 and form 638.

2      Smith v Television New Zealand Ltd (1994) 7 PRNZ 456.

3 At [459].

[9]        In a subsequent 2020 case involving another late jury notice, Cato v Manaia Media Ltd, Hinton J expanded upon the nature of the discretion involved and identified relevant considerations:4

Generally, the jurisdiction to grant an extension of time under r 1.19 has been held to be unfettered,5 subject to the need for the party seeking an extension or shortening of time to lay a proper foundation for the Court’s permitting a departure from the Rules.6 Practically speaking, this will require the applicant to provide suitable evidence of a good reason for their delay warranting the granting of an indulgence.7 That onus stems from the fact that, absent the applicant offering that good reason, the rules of court ought to have been obeyed.8 Also relevant to the assessment is whether prejudice has resulted or will result to other parties if an extension is granted, including, in particular, because of any unwarranted delay.9

[10]      In Cato, Hinton J also found useful the factors identified by Millett J in relation to the grant of an extension under the English rules in Mortgage Corp Ltd v Sandoes:10

1Time requirements laid down by the rules and directions given by the court were not merely targets to be attempted; they were rules to be observed.

2At the same time the overriding principle was that justice must be done.

3Litigants were entitled to have their cases resolved with reasonable expedition. The non-compliance with time limits could cause prejudice to one or more of the parties to the litigation.

4In addition the vacation or adjournment of the date of trial prejudiced other litigants and disrupted the administration of justice.

5Extensions of time which involved the vacation or adjournment of trial dates should therefore be granted only as a last resort.

6Where time limits had not been complied with the parties should co- operate in reaching an agreement as to new time limits which would not involve the date of trial being postponed.

4      Cato v Manaia Media Ltd [2020] NZHC 1240 at [81]; appeal dismissed in Cato v Manaia Media Ltd [2021] NZCA 226.

5      Caltex Oil (NZ) Ltd v Hughes (1986) 1 PRNZ 235 (HC).

6      Day v Ost (No 2) [1974] 1 NZLR 714 (SC), applying Ratnam v Cumarasamy [1964] 3 All ER 933 (PC) at 935 per Lord Guest.

7      Spicers Paper (NZ) Ltd v BPK & GA Buckley Ltd (1993) 6 PRNZ 16 (HC).

8      Day v Ost, above n 6, applying Ratnam v Cumarasamy, above n 6.

9      See the discussion in Day v Ost, above n 6; Ongley v Brdjanovic [1975] 2 NZLR 242 (HC); and [McGrory v Ansett New Zealand Ltd HC Auckland CP228/97, 2 February 2000].

10     Mortgage Corp Ltd v Sandoes [1996] TLR 751 EWHC at 752; adopted in McGrory v Ansett New Zealand Ltd, above n 9, at [22].

7If they reached such an agreement they could ordinarily expect the court to give effect to that agreement at the trial and it was not necessary to make a separate application solely for that purpose.

8The court would not look with favour on a party who sought only to take tactical advantage from the failure of another party to comply with time limits.

9In the absence of an agreement as to a new timetable, an application should be made promptly to the court for directions.

10In considering whether to grant an extension of time to a party who was in default, the court would look at all the circumstances of the case including the considerations identified above.

[11]      In the circumstances of the present case, the interests of justice clearly require the extension of time. The failure to address the fact the freezing order was to expire on 28 April 2025 when the proceeding was called in Court was an oversight both on the part of counsel for the plaintiff and of the Court. Ms Anderson promptly sought to remedy the situation. The freezing order by its nature does not finally determine any rights but is purely protective of the plaintiff’s interest pending the outcome of what appears to be a sound application for summary judgment. There is no significant prejudice to the defendant through the extension of time as his right to apply on short notice for the discharge or the variation of the freezing order remains. The alternative available to the plaintiff would have been to bring a completely fresh application.

Result

[12]I order:

(a)The time for the freezing order made on 12 March 2025 is extended to today’s date.

(b)The freezing order is renewed and is to remain in force until further order of the Court.

Osborne J

Solicitors:

White Fox & Jones, Christchurch