Wu v Christchurch High Court

[2022] NZHC 2916

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-513

[2022] NZHC 2916

BETWEEN

YIHENG WU

Plaintiff

AND

CHRISTCHURCH HIGH COURT

Defendant

Representative:	Y Wu (plaintiff) self-represented
Judgment:	8 November 2022
(Determined on the papers)

JUDGMENT OF OSBORNE J

(r 5.35A High Court Rules 2016)

This judgment was delivered by me on 8 November 2022 at 10.30 am pursuant to Rule 11.5

of the High Court Rules

Registrar/Deputy Registrar Date:

WU v CHRISTCHURCH HIGH COURT [2022] NZHC 2916 [8 November 2022]

[1]    Yiheng Wu has tendered for filing a document headed “Application against Christchurch High Court’s breach of the law”. The document asks that the Court determine what Mr Wu describes as “novel points of law” and then pay compensation to him and his family for harm it is said they have suffered.

[2]    Under rr 5.35A–5.35B High Court Rules 2016 (the Rules) the Court has power to strike-out a proceeding which is plainly an abuse of the process of the Court.

[3]The question is whether that power should be exercised here.

Summary of background

[4]    Mr Wu was married to Zhaohua Li for less than four years. After their separation Ms Li issued proceedings in the Family Court in June 2014 seeking a division of relationship property. The principal asset of their marriage was a house in Casebrook, Christchurch (the property).

[5]    Mr Wu’s mother, Zhongxiu Fan, became involved in the dispute over relationship property and was named as a second respondent in the Family Court proceeding.

[6]    Ms Fan issued her own proceeding in this Court in April 2018 claiming the property and other assets were held on trust for her — a position supported by Mr Wu. With Ms Fan’s proceeding being in this Court, Ms Li’s Family Court proceeding was transferred to this Court.

[7]    On 15 April 2019, Gendall J consolidated the two proceedings. Gendall J went on to hear the two proceedings and to give judgment (the High Court substantive judgment).1 Ms Fan’s claim that the property was held on trust for her was rejected but his Honour held money she had provided to Mr Wu for the purchase of the property (being relationship property) was a relationship debt owing to Ms Fan. The Court determined that Mr Wu and Ms Li each had a half-share interest in the property, subject

1      Li v Wu [2019] NZHC 2461 [High Court substantive judgment].

to recognition of the relationship debt owed to Ms Fan. The property was to be sold to enable these ordered outcomes to be effected.

[8]    Subsequently the Court made a facilitation order and an enforcement order to give effect to the High Court substantive judgment. Applications for leave to appeal those judgments and to stay the orders were dismissed. Mr Wu and Ms Fan between them made repeated, unsuccessful attempts to have the Court halt what became a sale process undertaken to give effect to the orders made in the substantive judgment.

[9]    That Ms Li’s relationship property proceeding and Ms Fan’s trust proceedings were heard together and were both subject to the High Court substantive judgment is beyond dispute. Such was the effect of the consolidation direction by Gendall J in April 2019. The fact the proceedings were consolidated is also clear from the High Court substantive judgment itself and has been accepted on appeal by the Court of Appeal2 and the Supreme Court.3

[10]   Despite these facts, Mr Wu has maintained since that no judgment has been delivered in respect of Ms Fan’s claim. That incorrect belief is at the heart of this intended proceeding.

Reference under r 5.35A of the Rules

[11]   The Registrar has referred this proceeding to me pursuant to r 5.35A of the Rules. Rule 5.35A provides:

5.35A Registrar may refer plainly abusive proceeding to Judge before service

(1)This rule applies if a Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly an abuse of the process of the court.

(2)The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16.

(3)However, the Registrar may,—

2      Wu v Li [2021] NZCA 137 (Mr Wu’s and Ms Fan’s applications for an extension of time to appeal the High Court substantive judgment and for a stay of execution of that judgment being declined).

3      Fan v Wu [2021] NZSC 67 (Mr Wu’s and Ms Fan’s) applications for leave to appeal being dismissed). See especially at [3]: “The consolidated proceedings”.

(a)as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and

(b)until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding.

[12]   Under r 5.35B of the Rules, if I conclude the proceeding is an abuse of process, I may strike the proceeding out.

[13]   For the reasons set out below I am satisfied that Mr Wu’s proceeding is an abuse of process and will be struck out.

The High Court substantive judgment in the consolidated proceedings

[14]   As noted, Mr Wu’s and Ms Fan’s two proceedings were consolidated in April 2019. The consolidated proceedings were then tried. The High Court substantive judgment was given in the consolidated proceedings.

[15]   Ms Fan made an unsuccessful application to the Court of Appeal for an extension of time to appeal against the High Court substantive judgment which, at that point, amounted to an implicit recognition by her of the fact the judgment would otherwise bind her. Mr Wu, on a parallel appeal, unsuccessfully applied for a stay of execution of the High Court substantive judgment.

[16]   Subsequently Mr Wu and/or Ms Fan came to assert, on a repeated basis, that judgment has still not been delivered in her proceeding. Central to the present intended proceeding is that same assertion, expressed for instance in Mr Wu’s statement that “[i]n the past three years, Zhongxiu Fan has insisted on sought delivery of 238 judgments” (the reference to “238” being a reference to the file number of her proceeding).

[17]   This assertion — that judgment has not been given in Ms Fan’s proceeding — has now been made by both Ms Fan and Mr Wu on a number of occasions and rejected on each occasion.

[18]   The assertion was comprehensively considered in the judgment of this Court on 1 March 2022, when dismissing an application of Ms Fan for a stay of enforcement (the stay judgment).4 On her application for a stay, Ms Fan contended the High Court had not delivered a judgment in her proceeding.5 The stay judgment goes into the history of the consolidation of the two proceedings and the subsequent judgments, including that of the Supreme Court which expressly recognised the two proceedings had been consolidated and tried together in 2019.6 The stay judgment also recorded that Ms Fan’s assertion that her claim in her proceeding had yet to be determined was entirely misconceived and, further, determined her application was plainly an abuse of process.7

[19]The stay judgment was not appealed.

Why Mr Wu’s proceeding is an abuse of process

The effect of consolidation — the issues have been determined

[20]   In the stay judgment, the Court introduced its discussion of the abuse of process involved in Ms Fan’s application thus:8

[29]      The Court of Appeal in Faloon v Planning Tribunal at Wellington upheld a High Court judgment by which a proceeding was struck out as being plainly an abuse of the process of the Court. Kόs P, in delivering the reasons of the Court, explained the considerations which underpin the courts’ approach to issues of abuse of process:

[2] Civil justice  has  some simple basic rules to maintain order. First, proceedings must involve claims by persons with a legitimate interest in the subject of the dispute (standing). Secondly, all persons likely to be affected directly by a judgment should be joined in the proceeding (joinder). Thirdly, claims cannot be undertaken by instalment: the claimant must bring all his or her claims on a subject together in the one claim (the rule in Henderson v Henderson). Fourthly, claimants who fail usually must pay a substantial contribution to the other side’s costs (costs). Fifthly, the judgment is determinative of all issues in the proceeding and must be implemented unless stayed pending an appeal

4      Li v Wu [2022] NZHC 333.

5 At [15].

6      Fan v Wu, above n 3, at [2]–[3].

7      Li v Wu, above n 4, at [25] and [36].

8      Citing Faloon v Planning Tribunal at Wellington [2020] NZCA 170 (an appeal in relation to an order made under r 5.35B of the High Court Rules 2016).

(execution). Sixthly, generally there is only one right of appeal, but a right to seek leave to bring a second appeal (appeal). Seventhly, once those rights are exhausted, that is that and the final judicial determination is not to be subverted by collateral challenge through further proceedings on the same subject matter (finality).

(footnote omitted)

[30]      The record of Ms Fan’s (and Mr Wu’s) repeated, unsuccessful applications to this Court and the other senior courts is one of determined resistance to the implementation of orders made in September 2019.

[21]   The effect of the consolidation of Ms Fan’s proceeding with that of Mr Wu, when followed by the trial and High Court substantive judgment, is that there has been final judgment of Ms Fan’s claims. That judgment is determinative of all issues in the proceeding and must be implemented unless stayed pending an appeal.9

[22]Here, there is no pending appeal and consequently no stay pending appeal.

[23]   This is one of the situations recognised by the Court of Appeal in Faloon v Planning Tribunal at Wellington as giving rise to a reasonable limit to recourse to law.10 The previous final judicial determinations are not to be subverted by collateral challenge through further applications on the same subject-matter.

Standing in relation to Ms Fan’s claims

[24]   The claims pursued by Ms Fan in her proceeding were based on the (subsequently rejected) proposition that she was the beneficiary of a trust.

[25]   For a proceeding to be brought in relation to such claims of Ms Fan, the proceeding had to be brought by Ms Fan. Instead, Mr Wu has purported to commence a proceeding based on Ms Fan’s claims.

[26]This is the first of the situations recognised by the Court of Appeal in Faloon

as giving rise to a reasonable limit to recourse to law.11 Proceedings cannot be brought

9      Faloon v Planning Tribunal at Wellington, above n 8, at [1]–[2].

10     Faloon v Planning Tribunal at Wellington, above n 8, at [1]–[2].

11     Faloon v Planning Tribunal at Wellington, above n 8, at [1]–[2].

except by persons with a legitimate interest in the subject-matter of the dispute. Mr Wu has no standing to bring a claim in relation to Ms Fan’s alleged interests.

Mr Wu’s knowledge of the Registrar’s sale process

[27]   The third point taken by Mr Wu in the intended proceeding is that he did not know the property was being sold without auction.

[28]   The sale order as to the property was initially made by Gendall J on 18 February 2021.12 There, his Honour identified the jurisdiction he was exercising in making the sale order, stating:

[31]As to jurisdiction issues, my judgment of 27 September 2019 gave all parties “leave to approach the Court further if any further directions regarding implementation of these orders is required.”

[29]   Ms Li’s subsequent application for sale was made in reliance on the above leave, which Gendall J found to provide jurisdiction for the sale order (in addition to s 33 Property (Relationships) Act 1976).

[30]   Mr Wu in the intended proceeding refers to the provisions of r 17.72 of the Rules, which provide that an enforcing officer must serve a copy of the r 17.71 notice of sale on the liable party at least seven working days before the sale.

[31]   Part 17 of the Rules sets out various means of enforcement of judgments. Those procedures are commenced by an entitled party or their solicitor filing a written request that a particular enforcement process be issued along with an affidavit to confirm that the particular enforcement process sought is one available as of right.13

[32]   Enforcement processes provided in pt 17 differ from an order for sale made by a Judge as part of or an adjunct to a substantive judgment. For example, under the Rules an enforcement process not executed expires after one year.14 Such a limitation would not have applied to the orders made by Gendall J.

12     Li v Wu [2021] NZHC 209.

13     High Court Rules, rr 17.8 and 17.9.

14     Rule 17.24.

[33] Ms Li, in seeking the sale order, did not invoke the jurisdiction for a sale order under r 17.58 of the Rules — the enforcement processes under pt 17 of the Rules are not referred to in Gendall J’s judgment of 18 February 2021. Ms Li relied on the leave reserved by his Honour as set out at [31] above.

[34]   Mr Wu’s reference to r 17.72 assumes that the sale was pursuant to an enforcement process commenced by application under the Rules. That assumption is incorrect.

[35]   While Gendall J initially made the sale orders on 18 February 2021, they were amended in a subsequent judgment.15 His Honour made detailed directions as to the sale of the property (the sale directions).16

[36]   In this case, the property, while originally put up for sale by auction, was passed in. The sale directions then required the Registrar to take further steps towards sale:17

In the event the property does not sell at auction, the Registrar is entitled to instruct the agents, Harcourts, to negotiate with any prospective purchasers and is to accept the highest offer above an amount which the Registrar, on advice from Harcourts and Cameron & Co, considers in all the circumstances is reasonable here.

[37]   The sale process took place pursuant to the sale directions — it did not take place under pt 17 of the Rules.

[38]   Mr Wu’s reliance on the Rules is misplaced, even assuming he is right (without deciding) that he did not receive notice of the sale. This aspect of Mr Wu’s claim is also entirely without merit and is therefore an abuse of process.

Outcome

[39]   Mr Wu’s proceeding will be struck out as an abuse of process for the above reasons.

15     Li v Wu [2021] NZHC 2552.

16 At [34].

17     At [34(j)].

[40]   Ultimately in the intended proceeding Mr Wu seeks an order for the return of the ownership of property to him. Such an outcome is plainly unavailable to Mr Wu by reason of the final judgments to which I have referred.

Order

[41]I order that the proceeding is struck out.

[42]   Mr Wu is given notice, pursuant to r 5.35B(3) High Court Rules, of his right to appeal against this decision. As a case of an appeal to the Court of Appeal as of right, for which the High Court Rules specify no time, any appeal must be brought within 20 working days after the date of my decision.18

[43]   I direct the Registrar to forward a copy of this judgment to Ms Li at her address for service as adopted in the most recent proceeding.

Osborne J

Copy to: Y Wu, Christchurch

18     Court of Appeal (Civil) Rules 2005, r 29(144) and (1).