WENG-YUAN TSAO SHAN-HUA CHEN AND YEN WEI CHEN KUEI-HUAN CHEN
[2024] NZCA 664
•16 December 2024 at 9.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA373/2024 |
| BETWEEN | WENG-YUAN TSAO |
| AND | YEN WEI CHEN |
| Court: | Katz and Palmer JJ |
Counsel: | Applicants in person |
Judgment: | 16 December 2024 at 9.00 am |
JUDGMENT OF THE COURT
A The application for an extension of time to appeal is declined.
B We make no order as to costs.
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REASONS OF THE COURT
(Given by Katz J)
Introduction
This is the latest chapter in a long-running dispute between two couples, Weng‑Yuan Tsao and Shan-Hua Chen (the applicants), and Yen Wei Chen and Kuei‑Huan Chen (the respondents). The dispute originates from a business venture between the two couples that failed. The subsequent litigation has resulted in a number of District Court, High Court, and Court of Appeal decisions.[1] Both the applicants and the respondents are self‑represented.
[1]See, for example: Chen v Chen DC Manukau CIV-2010-092-5263, 23 May 2013; Chen v Chen [2014] NZHC 2788; Chen v Chen [2015] NZHC 9; Chen v Chen [2017] NZHC 242; Alligators Fast Food Ltd v Chen [2018] NZHC 587; Chen v Chen [2019] NZCA 136; and Chen v Tsao [2021] NZDC 3326.
The applicants seek an extension of time to appeal a judgment delivered by van Bohemen J on 5 October 2023,[2] in which the Judge struck out the applicants’ latest proceeding on the basis it disclosed no reasonably arguable cause of action (the strike‑out judgment).[3] The extension application was filed on 10 June 2024, 134 working days (approximately seven months) out of time.
Background
[2]Court of Appeal (Civil) Rules 2005, r 29A.
[3]Tsao v Chen [2023] NZHC 2787 [strike-out judgment] at [95]–[98], citing High Court Rules 2016, r 15.1(1)(a).
On 1 November 2018, after over five years of litigation, the parties reached an agreement to settle their dispute (the settlement agreement). Unfortunately, however, the applicants failed to comply with the terms of the settlement agreement. Instead, they filed a new proceeding in the District Court in which they sought to overturn various prior court decisions and the settlement agreement, claiming these were obtained through fraud and coercion.[4] They were unsuccessful, and Judge Blackie ordered them to pay the amount outstanding under the settlement agreement to the respondents, being $24,700, plus interest.[5]
[4]Chen v Tsao, above n 1.
[5]At [8] and [10].
The applicants did not pay the sum ordered and instead filed another proceeding in the High Court. That is the proceeding which led to the strike-out judgment. Van Bohemen J found no evidence that the earlier court decisions had been influenced by fraud or fabricated evidence.[6] Nor was the settlement agreement illegal or voidable.[7] The applicants’ claims were found to be not reasonably arguable, and their new proceeding was accordingly struck out.[8] In a “postscript” to the judgment, the Judge stated:
Postscript
[100] Despite the length of this judgment, it was plain from the outset that the claims of Mr Tsao and Ms Chen were hopeless and that the preliminary trial served little purpose other than to confirm that reality.
[101] The lack of purpose of the preliminary trial was underscored by the Court being told at the end of the trial by Mrs Chen’s son, who acted as interpreter for his mother, that Mr Tsao had in fact paid the costs ordered by Lang and Muir JJ and agreed in the Settlement Agreement in order to get his car back. Mr Tsao’s daughter confirmed that this was correct. If Mr Tsao had disclosed that fact at any of the case management conferences after payment of the costs had been made, it is highly unlikely the proceeding would have been allowed to go any further.
…
[105] Lastly … given Mr Tsao’s obvious reluctance to accept that he and Ms Chen are precluded by the Settlement Agreement from bringing further proceedings in relation to their dispute with Mr and Mrs Chen, I direct the Registrar that no further proceeding relating to the dispute between the parties is to be accepted for filing without the approval of a High Court judge.
Extension of time to appeal — legal principles
[6]Strike-out judgment, above n 3, at [71]–[79].
[7]At [80]–[94].
[8]At [95]–[98].
The legal principles applying to an application for an extension of time to appeal are well established.[9] The ultimate question is what the interests of justice require, in the particular circumstances of the case.[10] Relevant considerations include:[11]
(a)the length of the delay;
(b)the reasons for the delay;
(c)the conduct of the parties, particularly of the applicant;
(d)any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and
(e)the significance of the issues raised by the proposed appeal, both to the parties and more generally.
[9]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40].
[10]At [38].
[11]At [38].
The merits of the proposed appeal may also be relevant, but any consideration of the merits must be relatively superficial.[12]
Discussion
[12]At [39(c)].
The delay here is significant. The only explanation offered, other than the applicants’ lack of legal representation, is that they were attempting to take steps in the High Court to challenge the strike-out judgment (despite the Judge’s direction to the Registrar not to accept further proceedings for filing).[13]
[13]Strike-out judgment, above n 3, at [105].
The explanations offered for the delay are unpersuasive and inadequate. Although the applicants are self-represented, they are experienced litigants. They are clearly aware of s 56 of the Senior Courts Act 2016 (which sets out this Court’s jurisdiction) as they refer to it in their submissions. Section 56(4) provides for an appeal as of right to this Court from a decision of the High Court striking out or dismissing the whole or any part of a proceeding. There is no adequate explanation as to why the applicants did not file such an appeal promptly, rather than attempt to collaterally attack the strike-out judgment in the High Court using processes (such as judicial review or seeking a “retrial to create a new claim”) that were inapt.
As for the merits, the proposed grounds of appeal are difficult to discern. We infer, however, that the applicants wish to advance essentially the same arguments on appeal as they did in the High Court. In our view those grounds lack merit and the prospects of success on appeal are negligible, for the reasons explained by the Judge at considerable length in his very comprehensive judgment.
In conclusion, it is our view that the extension application should be declined. The interests of finality must prevail. The continuation of this protracted and unmeritorious litigation is not in the overall interests of justice.
The respondents opposed the application for an extension of time and filed a helpful memorandum setting out their grounds of opposition. However, because their memorandum was filed before 1 September 2024 (after which rule changes allow costs awards to be granted to litigants in person) they are not entitled to an award of costs.
Result
The application for an extension of time to appeal is declined.
We make no order as to costs.
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