Wang v Lu - [2021] NZCA 283

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA556/2020
[2021] NZCA 283

BETWEEN	JIANPING WANG Appellant
AND	BIN LU First Respondent WEIHUA ZHANG Second Respondent

Court:	Brown, Clifford and Gilbert JJ
Counsel:	G P Blanchard QC and G E Slevin for Appellant A L Harlowe for Respondents
Judgment: (On the papers)	30 June 2021 at 10.30 am

JUDGMENT OF THE COURT

AThe application to correct the judgment under r 8 of the Court of Appeal (Civil) Rules 2005 is declined.
B The respondents are to pay the appellant costs on the present application on a band A basis plus usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

This is an application by the respondents, Mr Bin Lu and Ms Weihua Zhang, to this Court to correct — under the slip rule[1] — what they say is the incorrect intitulement of this Court’s judgment Wang v Lu.[2] Mr Jianping Wang, who was the successful appellant in that judgment, opposes.

Analysis

Mr Wang’s High Court proceedings

[1]Court of Appeal (Civil) Rules 2005, r 8.

[2]Wang v Lu [2020] NZCA 673.

Mr Wang is a judgment creditor of a Mr Jihong Lu (Mr J Lu). The respondents are respectively the brother, Mr Bin Lu (Mr B Lu), and the mother, Ms Weihua Zhang, of Mr J Lu. Mr J Lu is deceased.
Before Mr J Lu died Mr Wang had commenced recovery actions against him, including by the issue of a bankruptcy notice. Mr J Lu did not comply with that notice.
On becoming aware of Mr J Lu’s death Mr Wang commenced proceedings by way of an originating application to have Mr J Lu’s estate administered as an insolvent estate under pt 6 of the Insolvency Act 2006.[3] He did so under the following intitulement:
[3]Insolvency Act 2006, s 381.
Mr J Lu died in Taipei, Taiwan, on or about 21 January 2020. Mr Wang commenced his application for a pt 6 order on 7 May 2020. At that point in time, Mr Wang had no formal evidence of Mr Lu’s death, nor of the existence of any will.
Mr Wang’s interlocutory application was served on the first and second respondents, Mr B Lu and Ms Zhang and set down for an on notice hearing on 30 July 2020.
During the course of that hearing Wylie J noted Mr Wang had not explicitly sought an order that Mr Lu’s estate be administered under pt 6: rather, he had applied for a named insolvency practitioner to be appointed to carry out that task.[4] As a result, counsel for Mr Wang made an oral application for the originating application to also be treated as an application to that effect.[5]
[4]Re Lu [2020] NZHC 1894 at [19].
[5]At [11].
Mr B Lu and Ms Zhang opposed, citing concerns for other creditors.[6] The Judge declined Mr Wang’s application as a result.[7]
[6]At [12].
[7]At [14].
Subsequently the Judge granted leave for Mr…

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: [2021] NZCA 283
Decision Date: 30 June 2021 at 10.30 am

CaseChat Overview and Summary

This Court was asked to consider an application by the respondents, Mr Bin Lu and Ms Weihua Zhang, to correct what they considered to be an incorrect intitulement in the Court's judgment in Wang v Lu. The appellant, Mr Jianping Wang, opposed the application. The central issue was whether the Court should grant the respondents' request to correct the intitulement of the judgment under the slip rule, as they argued that the error would render Mr Lu personally liable for costs. The Court found that the respondents' application was fundamentally misconceived because it attempted to appeal the substance of the Court's award of costs, rather than correcting an accidental slip or omission.

The Court found that the respondents had fully participated in the proceedings and were accorded the rights of parties, which was the basis for the award of costs against them. Allowing the application would be a misuse of the slip rule and effectively an appeal against the substance of the Court's award of costs. The Court considered the award to be one properly made in the ordinary course. As a result, the application to correct the judgment was declined. The respondents were ordered to pay the appellant's costs on the present application on a band A basis plus usual disbursements.

Orders