Yiin v New Zealand Home Bonds Limited

[2013] NZHC 2761

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-1529 [2013] NZHC 2761

BETWEEN  ANN YIIN and EE LAU Appellants

ANDNEW ZEALAND HOME BONDS LIMITED

Respondent

Hearing:                   (On the papers) Counsel: EE Lau for Appellants

D M Lester for Respondent

Judgment:                22 October 2013

JUDGMENT OF PETERS J

Solicitors:           GCA Lawyers, Christchurch

Counsel:            D M Lester, Christchurch

Copy to:            A Yiin and E E Lau, Manukau

YIIN v NEW ZEALAND HOME BONDS LIMITED [2013] NZHC 2761 [22 October 2013]

[1]      I gave judgment in this matter on 30 August 2013.1     In that judgment I

declined the Appellants’ appeal from a decision of the District Court.

[2]      The Appellants now seek a stay of my judgment and apply for leave to appeal to the Court of Appeal.   The Respondent opposes any stay and opposes the application for leave to appeal.

[3]      The  application  for  leave  is  made  out  of  time.    I  propose  to  grant  the necessary extension of time, notwithstanding that the Respondent opposes me doing so. The application for leave is late because the Appellants sought to file their appeal directly in the Court of Appeal.  The Court of Appeal rejected the appeal, hence the late  filing  of  the  application  for  leave.     In  those  circumstances  I  grant  the enlargement of time required.

[4]      The grounds on which leave is sought are as follows:

(a)      those set out in an affidavit sworn by Mr Lau on 24 September 2013;

and

(b)various factual findings made in the District Court which I upheld, and   concerning   the   transaction   between   the   Appellants,   the Respondent and Hanover Finance Limited (“Hanover”) in its capacity as assignee of a bond issued by the Respondent at the Appellants’ request.

[5]      The grounds on which leave to appeal to the Court of Appeal may be granted are as follows:2

... The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal: Rutherfurd v Waite [1923] GLR 34; Cuff v Broadlands Finance Limited [1987] 2 NZLR 343, 346-7. ...

1 Yiin v New Zealand Home Bonds Ltd [2013] NZHC 2238.

2 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.

[6]      In Waller the Court of Appeal also said:3

Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.

When the disputed matter is entirely or largely a question of fact the task of the applicant ... is harder. An issue of fact in a matter falling within the jurisdiction of an inferior Court will seldom be of public importance. It is better that we make no attempt to define the circumstances in which a factual contest can be taken to have private importance but obviously it may do so if the amount at stake is very substantial or the decision reflects seriously on the  character  or  conduct  of  the  would-be  appellant  or,  as  in  Cuff,  the judgment below has special consequences (for example, bankruptcy) for the losing party. Even then, however, leave cannot be anticipated if the applicant is seeking to disturb concurrent findings of fact in the lower Courts.

[7]      The Respondent submits that none of the grounds on which the Appellants seek leave satisfy the criteria on which leave may be granted.

[8]      The  events  giving  rise  to  the  proceedings  between  the  Appellants  and

Respondent are as follows.

[9]      The  Appellants  as  purchasers  entered  into  an  Agreement  for  Sale  and Purchase in respect of several units to be constructed in a residential apartment building in Auckland.  They satisfied the deposit requirement under the agreement by provision of a bond issued by the Respondent to the vendor.  The period of the bond  was  extended  from  time  to  time.    The Appellants  failed  to  settle  on  the purchase and Hanover, the assignee of the bond, called on the Respondent for payment.

[10]     Following litigation, the Respondent recovered the amount of the bond from the Appellants’ solicitor, Mr Singh.  Mr Singh had undertaken to pay the Respondent the amount of the bond if called upon to do so.  The High Court, and subsequently

the Court of Appeal, ordered Mr Singh to honour his undertaking.4

3 Ibid.

4 New Zealand Home Bonds Ltd v Singh HC Christchurch CIV-2008-409-584, 4 September 2008; and

Singh v New Zealand Home Bonds Ltd [2009] NZCA 103.

[11]     The Appellants then commenced proceedings against the Respondent seeking recovery of the funds that Mr Singh had paid.  In 2010 the District Court declined the Respondent’s application for summary judgment on its defence, and I confirmed the same on appeal.5   That left the Appellants free to pursue their proceedings in the District Court.   They were unsuccessful in those proceedings.   The District Court Judge was not satisfied that the Appellants had grounds to recover from the Respondent.6   The Appellants appealed that decision to the High Court.  I heard and dismissed the appeal, which appeal itself rested largely on overturning factual findings the Judge had made.7

[12]     From the face of the application for leave and the affidavit of Mr Lau (one of the Appellants), it is apparent that the Appellants wish to revisit matters of fact which were first resolved against them in the District Court.   The matters sought to be appealed are not of public importance nor meet any of the other criteria for an appeal on a matter of fact.

[13]     Nor does any issue of law arise on the face of those documents, let alone one which meets the criteria on which leave to appeal may be granted.

[14]     Accordingly, I dismiss the application for stay and I decline leave to appeal to the Court of Appeal.

..................................................................

M Peters J

5 New Zealand Home Bonds Ltd v Yiin HC Auckland CIV-2009-404-5378, 12 November 2010.

6 Yiin v New Zealand Home Bonds Ltd DC Auckland CIV-2008-004-225, 25 February 2013.

7 Yiin v New Zealand Home Bonds Ltd, above n 1.