Wang v Lu
[2021] NZCA 283
•30 June 2021 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA556/2020 [2021] NZCA 283 |
| BETWEEN | JIANPING WANG |
| AND | BIN LU |
| Court: | Brown, Clifford and Gilbert JJ |
Counsel: | G P Blanchard QC and G E Slevin for Appellant |
Judgment: | 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.
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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 Wang to appeal that ruling.[8]
[8]Re Wang [2020] NZHC 2415.
The two High Court judgments leading to the appeal to this Court and, following Mr Wang’s success in that appeal,[9] the High Court’s subsequent costs award in Mr Wang’s favour,[10] have all been delivered under the intitulement set out at [4] above.
This proceeding
[9]Wang v Lu, above n 2.
[10]Re Lu [2021] NZHC 631.
Mr Wang commenced his appeal in this Court under the intitulement which appears on the face of this judgment. That intitulement was used throughout the course of that appeal, including by the respondents:
(a)in their reply consenting to Mr Wang’s fast track application;
(b)on their notices of appearance; and
(c)on the written submissions of Mr Harlowe on their joint behalves.
The respondents opposed Mr Wang’s application to this Court for dispensation from security for costs. In her decision, granting that application in part, the Deputy Registrar observed:
[11] I do not accept the appellant’s submission that the proceeding does not affect the respondents’ interests and that security for costs is therefore not warranted. Although the respondents accept they will not suffer prejudice from the substantive application, they consider other beneficiaries could. Both respondents opposed the application in the High Court on this basis. They also clearly intend to defend the appeal. They are represented by counsel and a timetable has been set for appellant and respondent submissions.
[12] I am satisfied the respondents have a genuine interest in the proceeding, even if they will not suffer prejudice from it. In my view, they are entitled to security for their costs of defending the appeal like any other respondent, pursuant to r 35.
(Footnotes omitted.)
We released our judgment on 21 December 2020.[11]
Wrong intitulement — a slip?
[11]Wang v Lu, above n 2.
The question of correct intitulement was first raised by counsel for Mr B Lu and Ms Zhang in a memorandum of 18 February 2021. As relevant, Mr Harlowe and Ms Davenport QC explained:
6.Counsel respectfully requests that this error in the intituling of the judgment in Wang v Lu [2020] NZCA 673 be remedied using the slip rule so as to mirror the correct intituling of the judgment regarding leave to appeal. … Mr Bin Lu has no standing in this appeal as he is not the executor of the estate of Jihong Lu (as probate is still not resolved) and it would be improper for the intituling to retain this error as it carries with it a requirement that the first respondent pay costs.
Mr Slevin, counsel for Mr Wang filed a memorandum the next day. He explained:
3.It is apparent that the changes sought by counsel for the respondents are outside the scope of the slip rule and could only be made if the judgment was recalled or successfully appealed. Their objective is to deprive the appellant of the benefit of the Court’s judgment on costs. Costs were discussed at the hearing with no objections being raised by counsel.
Mr Harlowe filed a further memorandum in reply dated 19 February 2021. He said:
2.At the end of the hearing both Counsel agreed the scaled rate (1A), but there was no discussion or agreement as to quantum and/or liability.
In a minute of 1 March 2021, we declined to consider a slip rule correction of our own motion. If the respondents wished to pursue the matter an interlocutory application was to be made. We suggested time and money might be better spent on more substantive issues, noting the active part Mr B Lu and Ms Zhang had played thus far.
Application for correction of “slip”
Notwithstanding such an application was filed on 5 March 2021. In essence, Mr B Lu argues:
(a)He appeared in the High Court “on behalf of the estate” as the personal representative.
(b)Leave for the appeal was granted on the basis that costs would be payable by the estate and not by Mr B Lu personally. The judgment granting leave correctly recorded Mr Lu and Ms Zhang as interested parties.
(c)As a result of Mr Wang’s actions in adopting the allegedly incorrect intitulement, the judgment (of this Court) contains an error, namely the incorrect intituling and a subsequent order that Mr B Lu as respondent pay costs.
(d)The practical effect of the error in the intituling is that Mr B Lu is personally liable for $17,013.09 of Mr Wang’s costs, because of an error by counsel for Mr Wang.
(e)That error should be corrected.
Our assessment
In our view that narrative establishes that this application is fundamentally misconceived.
We say that for the following reasons:
(a)As noted in our decision,[12] Mr Wang commenced his pt 6 application by way of originating application without — as permitted by the High Court Rules 2016 — naming a respondent. At the same time, he applied for orders as to service on Mr B Lu and Ms Zhang.
(b)Mr B Lu and Ms Zhang were duly served and, as noted, they filed notices of opposition and appeared at the hearing of the substantive application to oppose. They also opposed, successfully, the application for the originating application to also be treated as an application for an order that Mr J Lu’s estate be administered under pt 6.
(c)They both participated fully as respondents to the appeal, by opposing leave, filing appearances opposing dispensation of security for costs and making submissions at the substantive hearing.
(d)At the end of that hearing, and as Mr Harlowe correctly observed, counsel agreed the scale rate. That there was no explicit discussion as to quantum and/or liability is unsurprising: quantum is never discussed and unless, due to some aspect of the hearing, the Court or counsel raise the matter, costs follow the event.
[12]Wang v Lu, above n 2, at [8].
It was only on their receipt of the draft order for sealing that the respondents’ concern as to the mode of intitulement was raised. That concern is, in reality, a concern as to liability for costs, as they accept.
There has been no accidental slip or omission. The real question is the substantive effect of the costs order against Mr B Lu and Mrs Zhang, whether described as respondents or interested parties. As regards that:
(a)The respondents had participated in these proceedings at each stage in opposition to Mr Wang’s applications.
(b)In doing so they have acted as parties and have been accorded the rights of parties.
(c)That was the basis of the award of costs on the appeal in this Court against the respondents, not simply their position as named parties.
We note the High Court reached similar conclusions in awarding costs to Mr Wang following his successful appeal to this Court.[13]
[13]Re Lu, above n 10, at [11].
It would, therefore, be a misuse of the slip rule to grant the respondents’ application which is, in effect, an appeal against the substance of our award of costs. We consider that award to be one properly made in the ordinary course.
Result
The application to correct the judgment under r 8 of the Court of Appeal (Civil) Rules 2005 is declined.
The respondents are to pay the appellant costs on the present application on a band A basis plus usual disbursements.
Solicitors:
Davidson Legal, Christchurch for Appellant
Couch Harlowe Kovacevich, Auckland for Respondents
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