Xing v Cao

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA68/2023
[2023] NZCA 584

BETWEEN	ZHONG XING Appellant
AND	ERYUN CAO First Respondent SAM NGU Second Respondent NIKUL PANSILA Third Respondent CHURTON HART AND DIVERS LIMITED Fourth Respondent XIAOQING WU Fifth Respondent TOWER LAW LIMITED Sixth Respondent

Court:	Miller and Brown JJ
Counsel:	Appellant in person R O Parmenter for First to Sixth Respondents
Judgment: (On the papers)	22 November 2023 at 10.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to comply with r 43(1) of the Court of Appeal (Civil) Rules 2005 is declined.
BThere is no order as to costs.

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REASONS OF THE COURT

(Given by Brown J)

Mr Xing filed an appeal against a decision of Venning J declining Mr Xing’s applications for orders removing certain caveats.[1] Mr Xing did not pay security for costs and his appeal was deemed abandoned on 9 May 2023. On 22 May 2023 Mr Xing filed an application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005.
[1][Xing] v Wu [2022] NZHC 3322.
A joint memorandum dated 1 November 2023 has been filed, signed by Mr Xing and Mr Parmenter, counsel for the respondents, advising that Mr Xing and the respondents have reached a global settlement of most of the matters that were in contention among them. Mr Xing seeks leave to withdraw his application for an extension of time with no order as to costs. Mr Parmenter consents on behalf of his clients.
In these circumstances the application for an extension of time to comply with r 43(1) is declined. We make no order as to costs.

Solicitors:
Carson Fox Bradley Ltd, Auckland for First to Sixth Respondents

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Zhong Xing, the appellant, sought to appeal a decision by Venning J, who had declined Xing's applications to remove certain caveats. This decision was appealed by Xing, who did not pay security for costs, leading to the abandonment of his appeal on 9 May 2023. Subsequently, on 22 May 2023, Xing filed an application for an extension of time under rule 43(2) of the Court of Appeal (Civil) Rules 2005. The respondents were represented by R O Parmenter. On 1 November 2023, a joint memorandum was filed by Xing and Parmenter, indicating that Xing and the respondents had reached a global settlement regarding most of the matters in contention among them. Xing requested leave to withdraw his application for an extension of time, with no order as to costs, to which Parmenter consented on behalf of his clients.

The primary legal issue before the court was whether to grant the appellant's application for an extension of time to comply with rule 43(1) of the Court of Appeal (Civil) Rules 2005. This issue arose because the appellant had previously abandoned his appeal due to failure to pay security for costs, but later sought an extension of time to reinstate his appeal. The court was required to consider the circumstances under which the extension should be granted and whether the settlement reached by the parties affected the need for the extension.

In delivering the judgment, Brown J noted that the application for an extension of time was declined, and no order was made as to costs. The court reasoned that, given the global settlement reached between Xing and the respondents, there was no need for the extension of time. The settlement indicated that the primary matters in contention had been resolved, rendering the extension of time unnecessary. The court declined the application and made no order as to costs, considering the settlement as a resolution of the issues at hand.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established