Wong v United Chinese Associations of New Zealand Incorporated

[2017] NZHC 551

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-1233 [2017] NZHC 551

IN THE MATTER

of an action for judicial review

BETWEEN

STEVEN WAI CHEUNG WONG Plaintiff

AND

UNITED CHINESE ASSOCIATIONS OF NEW ZEALAND INCORPROATED

First Defendant

CHEN JIMNING
Second Defendant (removed)

HONG (HARVEY) GUO Third Defendant

Hearing:	On the Papers
Counsel:	I F Williams and A J Steel for Plaintiff R S Pidgeon for First Defendant No appearance for Second Defendant T-C D Wu for Third Defendant
Judgment:	24 March 2017

JUDGMENT (No.2) OF FOGARTY J [Declaration]

This judgment was delivered by Justice Fogarty on

24 March 2017 at 4.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Kemps Weir, Auckland

Pidgeon Law, Auckland

Dawsons Lawyers, East Tamaki, Auckland

WONG v UNITED CHINESE ASSOCIATIONS OF NEW ZEALAND INCORPROATED [2017] NZHC 551 [24 March 2017]

Background

[1]      On  27  February  2017,  I  issued  judgment  in  Wong  v  United  Chinese Associations of New Zealand Inc.1 That case was a judicial review of the actions of the  First  Defendant  in  removing  the  plaintiff,  Mr  Wong,  from  his  position  as president of that incorporated society.

[2]      Mr Wong had argued that the termination of his presidency was unlawful because  the  meeting  at  which  the  decision  to  terminate  had  been  made  was conducted in breach of the principles of natural justice. On that point, judgment was entered in favour of Mr Wong:

[62]      Accordingly, by way of remedy, this Court declares that the meeting on 25 October 2015 was conducted in breach of the obligations of natural justice owed by the society to the plaintiff. In particular, there was a failure to provide for all representatives at that meeting the opportunity to speak to or against the proposal and in particular to give the subject of the proposed resolution of termination of membership, the plaintiff, a fair opportunity to defend himself. Such defence to include the failure to give notice to the plaintiff of his specific conduct being relied upon to justify the resolution. These failures together amounted to a breach of natural justice.

[63]     It is declared that the plaintiff is still a member of the executive committee.

[3]      Mr Wong also sought a declaration that he was still the president of the defendant incorporated society. On that issue, judgment was not entered. Rather, I held:

[64]      The question as to whether or not [Mr Wong] is still the president of the defendant is adjourned pending an opportunity being given to the parties to this litigation to resolve that issue by calling for the election of [a] president, an event which falls due in any event, quite independently of this litigation, this month.

[4]      It  is  in  the  context  of  this  paragraph  of  the  judgment  that  the  present application arises.

1      Wong v United Chinese Associations of New Zealand Inc [2017] NZHC 274.

The Present Application

[5]      Mr Wong has now applied for a declaration that he continued to be, lawfully, the president of the defendant incorporated society, from the general meeting of 25

October 2015 (the meeting at which he was unlawfully removed), to the date of his resignation of that office. Given that Mr Wong has not been declared the president, he has not yet resigned. Rather, he has indicated an intention to resign the presidency on the day before the next election. That is scheduled for 2 April 2017. Mr Wong has indicated that he will not stand for re-election. The defendant has invited him to the election in any event.

[6]      Counsel for Mr Wong also addressed a counterclaim made at the original proceeding. The defendants had sought a declaration that, contrary to Mr Wong’s claim, the new president of the Association had been rightfully appointed. Final determination of that matter was not explicitly addressed in the judgment of 27

February. Mr Wong now seeks final judgment declining that declaration.

[7]      The  defendant  opposes  Mr  Wong’s  application.  First,  it  argues  that  Mr Wong’s application is in essence an application for recall of the 27 February judgment. It submits that the criteria for recall under the High Court Rules 2016 are not met. Secondly, the defendant argues that Mr Wong is essentially seeking better relief than was otherwise given to him. Thirdly, it argues that interfering with the election would not be in keeping with the generally minimalist approach taken to judicial intervention into the management of an incorporated society.

The Recall Issue

[8]      The defendant’s three submissions in opposition to Mr Wong’s application ultimately turn on whether or not that application is one attempting to recall the judgment.

[9]      The defendants cite Brake v Boote.2 In that case, Holland J was faced with an application to recall an earlier judgment, and an application of stay of execution of

that judgment. On the issue of recall, the Judge found that he had failed to turn his

2      Brake v Boote (1991) 4 PRNZ 86 (HC).

mind to an award of interest and therefore recalled judgment on that issue to correct the error. His Honour considered that the general test for a “very special reason justice requires that the judgment be recalled” would be met if a judge had “failed to determine an issue that was properly put before him.”3

[10]     In my view it is unnecessary to apply Brake v Boote to this case because I am satisfied that the present application is not an application for recall. The issue of whether or not Mr Wong was in fact the president of the incorporated society was addressed in the reasons delivered 27 February, but the final determination of that issue was adjourned. Judgment was not finally entered on that issue, so there is not a judgment to recall. Under the High Court Rules 2016, “judgment” is defined as

including an “order or decree of the court”.4  An adjournment is not a judgment. I

have  not  therefore  been  invited  to  recall  my  earlier  judgment  on  Mr  Wong’s

presidency.

Should the Declaration be Granted?

[11]     Given that this is not an application for recall, I now address whether or not the declaration sought by Mr Wong should be granted.

[12]     Counsel for Mr Wong submitted that granting the declaration was a necessary corollary of the finding that Mr Wong had been wrongfully terminated as president and the finding that he was still a member of the executive committee.

[13]     As noted in the 27 February judgment, the declaration sought by Mr Wong was adjourned to provide the parties with an opportunity to determine the president of the Association. It has now transpired that Mr Wong does not wish to be the next president. He intends to resign his presidency the day before the scheduled election. In those circumstances, I can see no reason not to grant the declaration. It follows from my findings in the judgment that Mr Wong’s presidency did not lawfully terminate at general meeting in October 2015. He ought, therefore, to be declared to

be the president up until the forthcoming election.

3      At 87.

4      High Court Rules 2016, r 11.1.

[14]     It  follows  from  this  reasoning  that  the  defendant’s  counterclaim  cannot

succeed.

Declaration

[15]     I make the following declaration:

(a)      The plaintiff, Mr Steven Wai Cheung Wong, did not cease to be the President of the United Chinese Associations of New Zealand Incorporated on 25 October 2015. He retains that office until it is resigned or until the next election held in accordance with the Association’s Constitution.

[16]     Costs are reserved.