Wu v Stalix Property Limited

[2022] NZCA 549

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA393/2022
 [2022] NZCA 549

BETWEEN	YIHENG WU Appellant
AND	STALIX PROPERTY LIMITED First Respondent STRESS FREE CHAIRS, DINING AND LOUNGE LIMITED Second Respondent

Court:	Miller and Goddard JJ
Counsel:	Appellant in person G K Riach for First and Second Respondents
Judgment: (On the papers)	16 November 2022 at 11.00 am

JUDGMENT OF THE COURT

AThe application for recall is declined.

BThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

1. The appellant, Mr Wu, applies for the recall of this Court’s judgment declining to grant a stay of enforcement of a High Court judgment granting the respondents possession of a residential property.[1]

Background

[1]Wu v Stalix Property Ltd [2022] NZCA 467 [Stay judgment].

1. On 5 August 2022 Associate Judge Lester granted summary judgment on a claim by the respondents against Mr Wu for possession of the property (High Court judgment).[2]  The respondents are the registered proprietors of the property.  Mr Wu is a former registered proprietor of the property, which he continues to occupy.

   [2]Stalix Property Ltd v Wu [2022] NZHC 1928.

1. Mr Wu filed an appeal to this Court against the order made by the High Court granting the respondents possession of the property.  He sought a stay of enforcement of the High Court judgment under r 12 of the Court of Appeal (Civil) Rules 2005. 

The stay judgment

1. This Court found that Mr Wu’s appeal would not be rendered entirely nugatory if a stay is not granted.  Granting a stay would cause obvious prejudice to the respondents.  Mr Wu had not offered an undertaking as to damages if a stay was granted, or provided evidence that he would be able to meet any damages awarded against him if a stay were granted and the appeal were to fail.  There was nothing in the material filed by Mr Wu in support of his application for a stay that suggested that his appeal had any realistic prospect of success.  As we said:[3]

   … The challenge to the possession order is a collateral attack on the earlier High Court judgment directing that the property be sold.  Against the backdrop of the history of this litigation, there is considerable force in the respondents’ argument that this application for a stay, and the appeal against the possession order more generally, amount to an abuse of process.

   [3]Stay judgment, above n 1, at [12].

2. We concluded that the overall balance of convenience strongly favoured the respondents, and that the stay should be declined.[4]

Discussion

[4]At [13]–[14].

1. The limited grounds on which a decision of this Court may be recalled are well established.  The recognised categories are first, that since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and higher authority; second, where counsel have failed to direct the court’s attention to a legislative provision or authoritative decision of plain relevance; and third, where for some other very special reason justice requires that the judgment be recalled.[5]

   [5]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, approved in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].

2. Mr Wu’s application for recall of this Court’s judgment identifies a number of grounds on which Mr Wu objects to the conclusions reached by this Court.  In effect, he seeks to re-litigate both the merits of the stay application, and the underlying merits of the proceedings in which the possession order was granted.  Nothing in his recall application identifies any ground on which a judgment could be recalled.  The first two categories plainly are not engaged.  Nor has Mr Wu identified any ground relevant to the third category.  An attempt to relitigate matters already decided is not a ground for recall: rather, it is an abuse of process.

1. In those circumstances, and having regard to the history of the proceedings summarised in our judgment, we are satisfied that the application for recall is an abuse of process.  The respondents should not be required to respond to it, and the Court’s time should not be further occupied by it, to the detriment of other parties with matters awaiting determination by this Court.  The application for recall should be declined.

Result

1. The application for recall is declined.

2. There is no order as to costs.

Solicitors:
Harmans Lawyers, Christchurch for First and Second Respondents