YUFEN CHANG AND ZHONGCHUN WANG
[2024] NZHC 3612
•29 November 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2024-419-000139
[2024] NZHC 3612
UNDER Section 124 of the District Court Act 2016 IN THE MATTER OF
an appeal against the substantive and costs decisions of the District Court
BETWEEN
YUFEN CHANG
Appellant
AND
ZHONGCHUN WANG
First Respondent
XIAOQUN WANG
Second Respondent
REI DESIGN HOME LIMITED
Third Respondent
Hearing: 8 October 2024 Appearances:
J M Rushton for Appellant
S L Robertson KC and S Lu for Respondents
Judgment:
29 November 2024
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 29 November 2024 at 3 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………..
Counsel/Solicitors:
J M Rushton, Hamilton
Jefferies Law Ltd, Hamilton S L Robertson KC, Hamilton
Nolan & Lu Lawyers, Hamilton
CHANG v WANG [2024] NZHC 3612 [29 November 2024]
[1] Yufen Chang applies for leave to appeal out of time the decision of Judge S R Clark given in the District Court at Hamilton on 23 February 2024 in which the Judge dismissed Mrs Chang’s claim against Zhongchun Wang for $300,000.1 The Judge held that Mrs Chang was estopped from claiming that amount under a deed of acknowledgement of debt dated 8 May 2015 (the Deed) signed by Mr Wang and Mrs Chang’s daughter, Xiao Wang (Kimi), in the exercise of a power of attorney Kimi held on behalf of Mrs Chang.2
[2] Mrs Chang also seeks leave to adduce further evidence in support of her appeal and a stay of execution of Judge Clark’s decision of 3 May 2024 awarding costs of
$45,611.50 and disbursements of $14,796.36,3 pending her appeal of the Deed
Decision.
[3] Under r 18.4(2)(b) of the District Court Rules 2014, the appeal period was 20 working days from the date of the Deed Decision, which expired on 22 March 2024. In filing her appeal on 31 May 2024, and taking into consideration the definition of “working day” in r 1.4, Mrs Chang’s appeal was filed 47 working days out of time.
[4] In the affidavit filed in support of her applications, Mrs Chang said she had been hesitant to appeal the Deed Decision because she understood the outcome was a stalemate and the Judge had discouraged any application for costs and she had difficulty finding counsel to review the proceedings and advise her on any appeal. She also says she has been trying to recover the loan of $300,000 since 2020 and she wants the chance to appeal decisions, which mean she has lost $300,000 to Mr Wang and must pay him costs of over $60,000.
[5] Mr Wang opposes all applications. Through his counsel, he says Mrs Chang’s application for leave to appeal was the result of receiving the Costs Decision, that the appeal does not raise any significant issues and there are no grounds for a stay.
[6] As a practical reality, the applications to adduce new evidence and to stay the Costs Decision are contingent on leave being granted to extend time to file the appeal.
1 Chang v Wang [2024] NZDC 3615 [Deed Decision].
2 At [93].
3 Chang v Wang [2024] NZDC 9795 at [21] [Costs Decision].
Principles applicable to extension of time
[7] As the Supreme Court said in Almond v Read, when considering an exercise of the discretion to extend time, the ultimate question is what the interests of justice require.4 Factors include:
(a)the length of the delay;
(b)the reasons for the delay;
(c)the conduct of the parties, particularly the applicant;
(d)any prejudice or hardship to the respondent or others; and
(e)the significance of the issues raised by the proposed appeal.
[8] The Supreme Court accepted that the merits of the proposed appeal may also be relevant, subject to the following qualifications:5
(a)where the merits or otherwise of the appeal are overwhelmed by other factors, such as the length of delay or prejudice to the respondent;
(b)where the delay is insignificant and there is no prejudice to the respondent other than the fact of the appeal; and
(c)that consideration of the merits in the context of an application to extend time must necessarily be superficial.
[9] Despite the last qualification, given the basis on which the Deed Decision was made and the grounds on which Mrs Chang seeks to appeal it, I have found it necessary to engage with the detail of the background circumstances to understand the likely merits of the appeal and to assess where the interests of justice lie.
4 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].
5 At [39].
Relevant background
[10] The following summary is taken from the briefs of evidence filed in the District Court, the common bundle for the District Court hearing, the Notes of Evidence in the District Court hearing and the Deed Decision.6
[11] Xiaoqun Wang (Kelvin) came to New Zealand from China in May 2003 to undertake tertiary studies. His tuition fees and living expenses were met by funds advanced by his father, Mr Wang, who was then resident in China. Mr Wang does not speak or read English. However, from 2008, he began to visit New Zealand, where he would stay with Kelvin. He obtained permanent residence in New Zealand in 2016.
[12] After completing his university studies and then working as a web system developer, Kelvin qualified as a real estate agent in 2010. At around the same time, he met Kimi, and they began a relationship. They had a child in 2012, and were married and had a second child in 2014.
[13] In January 2012, Mrs Chang travelled from China, where she was resident, to visit Kimi. While in New Zealand, Mrs Chang executed a power of attorney and deed of delegation in which she appointed Kimi as her attorney to act for her and sign documents in her name (the Power of Attorney).
[14] In April 2012, Kelvin incorporated REI Design Homes Ltd (REI) as a vehicle for providing residential building, project management and development services to customers.
[15] In February 2014, Kimi and Kelvin purchased two vacant lots in a subdivision in Hamilton. The lots became 16 Arista Way and 20 Arista Way. 16 Arista Way was purchased in Kimi’s name, on the basis of a loan from ANZ. 20 Arista Way was purchased in the name of REI. The intention was to build houses on both properties, with 16 Arista Way to be a development project for Kimi and Kelvin and
6 Counsel did not provide a chronology of events prior to the execution of the Deed. Had they done so, a considerable amount of time would have been saved in understanding the circumstances in which the Deed was executed.
20 Arista Way to be a home for Mrs Chang and a rental unit capable of generating an income.
[16] In July 2014, REI sold 20 Arista Way to Mrs Chang for $286,000 (GST inclusive), who, it appears, obtained a loan from BNZ to finance the purchase.7 At the time, the property was bare land, but Kelvin undertook to build a home on the land for Mrs Chang at what Kelvin said was the cost of building the house. At the time, Mrs Chang was a resident in China, but Kelvin discussed the project with her when he travelled to China in September 2014 to see Kimi and their new son who had been born in China in August 2014.
[17] In September 2014, Kimi and REI entered into a contract for the construction of a house at 16 Arista Way. There was no written agreement for the construction of 20 Arista Way. The houses on both properties were built by Kelvin, operating through REI.
[18] Construction of 20 Arista Way began in November 2014. Kelvin says the price agreed for the construction of the house was $380,000. Kimi and Mrs Chang say there was no agreed contract price.
[19] One of the central issues in dispute is whether Mrs Chang made any payments to Kelvin or REI for the costs of construction by Kelvin/REI of 20 Arista Way. It is common ground, however, that Kimi arranged for direct payment of subcontractors used on the project. While there was some disagreement between Kelvin and Kimi as to the amount paid to subcontractors, Judge Clark adopted $80,000 as the best evidence of the total amount paid.8
[20] Kelvin says that, apart from the subcontractors’ costs, he and REI met the construction costs for 20 Arista Way on the understanding that Mrs Chang would reimburse Kelvin when a Code of Compliance Certificate (CCC) for the development
7 I was unable to find any evidence of a loan being taken out at the time of purchase but, as discussed later, Mrs Chang repaid a loan to BNZ when she refinanced her investment in 20 Arista Way and made the advance to Mr Wang that is recorded in the Deed.
8 Deed Decision, above n 1, at [28].
had been obtained. Kimi says she made payments to Kelvin over the period of the building of the house to meet the construction costs.
[21] Construction of 16 Arista Way began in late December 2014 and lasted until early 2015. Kimi made various progress payments to REI over that period.
[22] On Monday, 4 May 2015, Kimi and Kelvin had an exchange in Mandarin via WeChat about when the CCC for 20 Arista Place would be available. On being told by Kelvin that the house was to be reinspected “this Tuesday and it shall be able to pass”, Kimi said:
OK, no problem. As I urgently need to repay you the money you have paid in advance, then for Mum and Dad, the left-over money is not enough to repay the loan, so I just ask. If it passes, then it is ok.
[23] On 5 May 2015, 16 Arista Way was sold. After repayment of the ANZ loan, the net sale proceeds of $173,413.74 were paid to Kimi that day by Lewis Lawyers, solicitors who acted for all parties.
[24] On 7 May 2015, Kimi wrote a cheque for $174,000, which she gave to Kelvin, who paid it into the Lewis Lawyers’ trust account the following day.
[25] On 8 May 2015, Mr Wang and Kimi, as attorney for Mrs Chang, executed the Deed. On the same day, Mrs Chang refinanced her investment in 20 Arista Way by a loan of $592,000 from ANZ and repaid a loan of $277,174.92 from BNZ. Mrs Chang also advanced $300,000 to Mr Wang, who used the funds to settle the purchase of four lots of land in Hamilton for the sum of $890,000.
[26]In July 2016, Kimi and Kelvin separated.
[27] On 6 March 2020, solicitors acting for Mrs Chang sent Mr Wang a letter of demand requiring repayment of $300,000 within 14 days. It appears that Mr Wang responded the same day directly to Mrs Chang denying any liability.9
9 This information is taken from a letter dated 14 June 2021 from solicitors acting for Mr Wang to solicitors acting for Mrs Chang. Although the letter stated that Mr Wang’s letter and email plus translations were attached, these were not included in the common bundle.
[28] In June 2021, further correspondence demanding payment and denying liability was exchanged by solicitors acting for Mrs Chang and Mr Wang.
[29] On 17 December 2021, Mrs Chang commenced proceedings against Mr Wang seeking repayment of $300,000 based on the Deed. In her affidavit in support, Kimi provided a schedule (the Schedule) setting out the payments she said she had made on behalf of her mother for the purchase of the land and construction at 20 Arista Way. The Schedule showed total costs of $690,999.76, including construction costs of
$396,798.41. It also showed payments said to have been made in respect of those costs, including payment of $174,000, which Kelvin paid into the Lewis Lawyers’ trust account on 8 May 2015.
[30] In February 2022, Mr Wang filed a statement of defence in which he denied any liability to Mrs Chang, saying the Deed was signed as part of a wider set of arrangements and the $300,000 was payment to Kelvin/REI for the costs of construction at 20 Arista Way.
[31] On 15 October 2022, Kelvin commenced a separate proceeding against Mrs Chang claiming $300,000, if the $300,000 paid to Mr Wang was held not to have been made for the costs of construction at 20 Arista Way.
[32]The two proceedings were subsequently consolidated.
[33] Between 23 and 26 January 2024, the two proceedings were heard by Judge Clark, who issued his decision on 23 February 2024.
[34]On 3 May 2024, Judge Clark issued the Costs Decision.
[35] On 31 May 2024, Mrs Chang filed her notice of appeal of the Deed Decision and the applications for an extension of time, a stay of the Costs Decision and leave to adduce further evidence.
The Deed
[36] The Deed records that the Creditor, Mrs Chang, has advanced “$300,000 (the Principal Sum)” to the Debtor, Mr Wang, to enable the Debtor to purchase four identified lots of land. It also records that the Debtor owes the Creditor the Principal Sum as at the date of the Deed, the Principal Sum is interest free and the Debtor will pay the Principal Sum to the Creditor on demand.
The positions of the parties on the substantive dispute
[37] Mrs Chang and Kimi say the Deed is a standalone document to be interpreted in its own terms and is unrelated to dealings between Mrs Chang and Kelvin, and that Mr Wang is in breach of its terms. They also say Mrs Chang paid in full the costs of the purchase and construction of 20 Arista Way, including by the application of
$174,000 Kelvin paid to Lewis Lawyers on 8 May 2015.
[38] Mr Wang and Kelvin say the Deed was part of a tripartite or set-off arrangement under which he agreed to repay his father $300,000 for the costs of his tuition and support in New Zealand; Mrs Chang agreed to pay REI $300,000 for the outstanding costs of construction of 20 Arista Way; and Kelvin arranged for the funds owed by Mrs Chang to REI to be paid directly to his father’s account with Lewis Lawyers, to ensure the funds were available to settle the purchase of the properties his father wanted to acquire. He says the Deed was executed to satisfy a concern by Kimi, acting on behalf of her mother, that the advance by Mrs Chang should not be seen as a gift to Mr Wang.
The District Court decision
[39] Judge Clark considered what transactions were taking place in April and May 2015, and in particular, the evidence on whether it was consistent with Chinese culture for a parent to expect repayment for assistance provided to a child’s education.10
10 Deed Decision, above n 1, at [17]–[18].
[40] The Judge accepted that Mrs Chang had no direct involvement in putting in place any tripartite or set-off arrangement. Mrs Chang was in China at the time and dependent on Kimi.11 The Judge noted that Mr Wang had no direct conversations with Mrs Chang or Kimi and had not asked for a translation of the Deed. He was dependent on what Kelvin said it meant and what other agreements might have been in place.12 For these reasons, the Judge held that the viewpoints of Mrs Chang and Mr Wang as to what had gone on were irrelevant and that what was required was an analysis of what happened between Kimi and Kelvin.13
[41] The Judge said it was undisputed that construction of the house at 20 Arista Way was not intended to be a gift and had to be paid for at some stage. He noted that Kimi maintained that her mother paid $690,999.75 in total for the land and construction costs, which totalled $396,789.41, as set out in the Schedule. He then held that Kimi’s evidence in relation to the Schedule was unreliable and noted the number of entries in the Schedule which Kimi had accepted in cross-examination should not have been included or had been shown to be incorrect. These included an entry for $72,249.74 paid by Kimi from Mrs Chang’s bank account to pay subcontractors and entries of payments of $40,000 and $40,500 by Kimi from her own bank account to REI for the construction of 16 Arista Way. The Judge also noted that Kimi’s evidence that she had borrowed “all the money for … 16 Arista Way” was not consistent with the evidence of the ANZ loan which had been repaid on settlement of the sale, following which the balance of the sale proceeds had been $173,413.74.14
[42] The Judge recorded that he had been sceptical about Kelvin’s evidence that the cheque for $174,000, which was effectively the sale proceeds of 16 Arista Way, had been paid to him by Kimi as a form of relationship property investment, but accepted that, although the documentary evidence was thin, it was consistent with Kelvin’s recall of events. That evidence included a letter written some years later by Lewis Lawyers stating that the sum of $174,000 had been receipted into a purchase file for REI.15
11 At [34].
12 At [35].
13 At [37]
14 At [51]–[60].
15 At [62]–[66].
[43] The Judge then recorded that, of the claimed $396,789.41 in construction costs, Mrs Chang and Kimi were unable to satisfy him that $326,749.74 of that amount — comprising the $72,249.74 paid to subcontractors, the payments of $40,000 and
$45,500 paid for the construction of 16 Arista Way and the $174,000 from the proceeds of sale of 16 Arista Way — had been paid to REI or Kelvin for the construction of 20 Arista Way.16
[44] The Judge referred to the WeChat exchange between Kimi and Kelvin on 4 May 2015 and noted that, as of that date, a CCC for 20 Arista Way had yet to be obtained but an inspection was pending and that obtaining a CCC was imperative for Mrs Chang’s bank loan with the ANZ. He noted that the message referred to money paid in advance by Kelvin, was made in the context of a discussion about 20 Arista Way and that an acknowledgement of needing to repay Kelvin the construction costs of 20 Arista Way was consistent with Kelvin’s account and could only be a reference to costs incurred by REI or Kelvin. He also noted that the message referred to repaying “the loan” and that it was known that Mrs Chang had a loan with the BNZ which was repaid from the loan obtained from the BNZ.17
[45] The Judge concluded that the WeChat message was supportive of the proposition that Kimi acknowledged the construction costs for 20 Arista Way had to be repaid to Kelvin and the funds were dependent upon a CCC and a loan being obtained for Arista Way.18 He also noted that there was no evidence of any demands being made by REI or Kelvin for payment of construction costs after 8 May 2015.19
[46]The Judge then made specific findings, which included that:20
(a)Kimi’s evidence about repayment of the construction costs of 20 Arista Way was inaccurate and unreliable;
16 At [69].
17 At [70–[77].
18 At [78].
19 At [80].
20 At [82].
(b)Kelvin had established that payments claimed by Kimi to have been received by Kelvin or REI had either not been received or, in the case of the cheque for $174,000, had been spent on a different purpose;
(c)it was clear from the WeChat message that Kimi acknowledged on behalf of her mother that a CCC was needed for 20 Arista Way and that Kelvin had to be repaid; and
(d)the lack of demand by REI/Kelvin after 8 May 2015 was consistent with the fact that all outstanding construction costs for 20 Arista Way had been paid as at that date.
[47] The Judge said there was no doubt that the advance of $300,000 from Mrs Chang to Mr Wang was to assist him to purchase four lots of land and that there was also no doubt that Mrs Chang continued to owe REI for the costs of construction at 20 Arista Way. In these circumstances, the Judge preferred the evidence of Kelvin that Kimi agreed to advance to Mr Wang the $300,000 that Mrs Chang was borrowing to fulfil her debt to REI for the construction costs for 20 Arista Way.21 The Judge also noted that the Deed had been insisted upon by Kimi to avoid any suggestion of a gift to Mr Wang.22 The Judge rejected the suggestion the Deed could be viewed entirely in isolation.23
[48] The Judge considered that arguments of a tripartite agreement or set-off did not work because the debts involved distinctly different parties. However, because Kimi had been acting at all times for her mother under the Power of Attorney and had, as her mother’s attorney, agreed to various matters including that the $300,000 could be paid to Mr Wang and would be in satisfaction of the debt owed by her mother to REI, Mrs Chang was estopped from resiling on the arrangements and representations made by Kimi on her behalf and was estopped from claiming $300,000 under the Deed.24
21 At [83]–[84].
22 At [84].
23 At [85].
24 At [91]–[93].
[49] The Judge said he did not encourage the filing of any costs memoranda and said he thought that seeking costs would be counterproductive. However, he made timetable directions if counsel were instructed to do so.25
Mrs Chang’s appeal
[50] In her notice of appeal, Mrs Chang alleges that Judge Clark made errors of fact in relation to many of the matters summarised above, including the Judge’s rejection of the contention that the Deed could be viewed in isolation, his finding that Mrs Chang had not paid $174,000 to REI and his findings as to Kimi’s credibility. Mrs Chang also alleges that the Judge made errors of law in relation to his findings of estoppel and various other matters. Mrs Chang seeks the reversal of the Deed Decision and the Costs Decision.
The application for extension of time
Submissions of counsel
[51]Ms Rushton, counsel for Mrs Chang, submits that:
(a)the delay is not extensive or determinative and refers in this regard to
W v W, where leave was allowed after a delay of five months;26
(b)the reason for the delay as explained by Mrs Chang, that the decision was a stalemate, is understandable as Mr Wang was not ordered to pay Mrs Chang and Mrs Chang was not ordered to pay Kelvin in his countersuit;
(c)Mrs Chang has proactively sought determination of the dispute;
(d)there is no evidence of prejudice to Mr Wang;
(e)the points of appeal are strongly arguable and the appeal involves a significant sum of money; and
25 At [94]–[95].
26 W v W [2022] NZCA 512, [2022] NZFLR 595.
(f)the appeal raises questions of wider relevance about the process of decision-making following consolidation.
[52] Ms Robertson KC, counsel for Mr Wang, accepts that the delay was moderate but says it can be inferred that the decision not to appeal was not based on perceived errors in the Deed Decision but was motivated by Mrs Chang having to pay Mr Wang under the Costs Decision. Ms Robertson also says there is no public interest or importance in the issues raised on appeal, which concern the liability of parties in a very specific fact situation in relation to a relatively modest sum of money. Ms Robertson accepts the appeal is not legally untenable, but says the prospects of success in appealing repeated adverse findings of fact must be weak.
Analysis
[53] I accept the delay is not large. However, in the context of a dispute decided principally on the basis of findings of fact that are now challenged, the delay is significant. If Mrs Chang really believed Mr Wang owed her $300,000, I consider it is unlikely she would have delayed at all. On the other hand, her delay in bringing the appeal is consistent with the delay of five years between execution of the Deed and the first attempts to enforce the Deed. Both delays call into question the bona fides of Mrs Chang’s claim.
[54] I do not consider the reasons offered for the delay to be persuasive. The Deed Decision did not result in a stalemate. Mrs Chang was very obviously the losing party. Her claim for $300,000 was comprehensively dismissed. For that reason, there was no need for the Judge to make any finding on Kelvin’s separate claim, which was contingent on Mrs Chang succeeding in her claim.
[55] I do not accept that Mrs Chang proactively sought determination of the dispute. She delayed for five years before seeking payment under the Deed and did so only after Kimi and Kelvin had separated. I accept, however, that there is no prejudice to Mr Wang other than the fact of the appeal.
[56] I do not accept the appeal raises any issues of significance or public importance. It concerns arrangements made within a family context and against the
background of a culture in which, as discussed in the evidence of an expert witness, relationships within a family can influence business dealings. The issues are highly context specific.
[57] Most importantly in the context of this case, the merits of the appeal appear weak. The timeline of events set out above invites the obvious inference that there was a close connection between Mrs Chang’s refinancing of 20 Arista Way and her payment of $300,000 to Mr Wang. Indeed, the second event was contingent on the first. Given that reality, the contention that the Deed could be viewed in isolation and without consideration of how the costs of construction of 20 Arista Way were met strains credulity.
[58] In reaching that conclusion, I have also had regard to the additional evidence that Mrs Chang seeks to adduce on appeal. It is a series of bank statements produced by Kimi that show payments made to Kimi from Mrs Chang and Kimi’s father. On the basis of those statements, Mrs Chang and Kimi invite the Court on appeal to accept that there were more than sufficient funds transferred from Kimi’s parents to Kimi for her to have used those funds for the cheque of $174,000 that Kimi gave to Kelvin on 7 May 2015. By necessary implication, Mrs Change and Kimi invite the Court on appeal to accept that the cheque for $174,000 was not drawn on the proceeds of sale of 16 Arista Way and Judge Clark was wrong to have concluded that Kimi had not accounted for that amount as part of the payment of costs for the construction of 20 Arista Way.
[59] This evidence is highly circumstantial. It shows a series of transfers from the bank accounts of Mrs Chang and Kimi’s father to Kimi’s bank account between February 2014 and August 2015. None of them is for a sum of or close to the amount of $174,000. Most significantly, the inference Mrs Chang and Kimi invite the Court to draw is directly contrary to evidence Kimi gave before Judge Clark when being examined by her own counsel on a bank statement that was in evidence before the District Court:
Q.Can you please explain to the court your understanding about the payment number 15 on the 8th of May 2015?
A. Sure.
Q. 174,000.
A. Yes, so this cheque was being withdraw from the bank account by myself because I just sold a property next to it. That’s another 16 (inaudible 09:44:06) and Kelvin showed he needed those money so I get the cheque and confirm from my Mum to pay him through those ways.27
[60] The above evidence, to the effect that the $174,000 was drawn on the basis of the sale proceeds of 16 Arista Way, was confirmed by Kimi when being cross-examined by Ms Robertson on the same bank statement:
Q. And do you recall that 16 Arista Way was sold in early May 2015?
A. That’s been sold on that would be the 5th of May.
Q. The 5th of May?
A. Yes.
Q.And that – the proceeds of sale of that appear in this bank statement on the 5th of May don’t they, on page 19?
A. Yes you can see they’re there.
Q. $173,413.74?
A. Yes.
Q.So you accept that that money there is the sale proceeds of 16 Arista Way?
A. Yes.
Q.And then there’s some discharge of mortgages and repayments of loans and then it’s that $173,000 that’s rounded up to $174,000 and paid out in cheque 635158 on the 7th of May isn’t it?
A. You’re right, yes.
[61]This evidence was confirmed in re-examination:
Q. So I will like to refer you to the schedule. Lot 15, that 174,000 the payment it’s already established that that appears to be the sale proceeds of number 16 Arista Way. So can you please reconfirm why you would like to apply this sale proceeds of your personal property to cover the contract costs of your mum’s house.
A.Because my mum support me for the money to build a house as well. To build the number 16 Arista Way.
27 I consider it reasonably apparent that “another 16” should have read “number 16”.
[62] Given the above evidence, I consider it highly unlikely that the further evidence Mrs Chang and Kimi seek to adduce would be accepted as probative of the matter that Mrs Chang seeks to establish: namely, that the payment of $174,000 came from other funds provided her parents and not from the sale proceeds of 16 Arista Way.
[63] For all these reasons, I am satisfied that there is little merit in Mrs Chang’s appeal and that it is not in the interests of justice that leave be granted to extend time for the filing of the appeal. Accordingly, I dismiss Mrs Chang’s application for leave to file her appeal of the Deed Decision out of time.
Other applications
[64] Because I have dismissed Mrs Chang’s principal application, the other applications fall away. In addition, and for the reasons discussed above, there is little probative value in the further evidence Mrs Chang seeks to adduce. Since the appeal of the Deeds Decision will not proceed, there is no purpose in staying the Costs Decision. However, the fact that Mrs Chang decided to appeal the Deed Decision after receipt of the Costs Decision confirms the prescience of Judge Clark’s admonition that seeking of costs would be counterproductive.
Result
[65] Mrs Chang’s applications to appeal out of time Judge Clark’s decision of 23 February 2024, to adduce further evidence and to stay Judge Clark’s Costs Decision of 3 May 2024 are dismissed.
Costs
[66] As the successful party, Mr Wang is entitled to costs. I do not repeat Judge Clark’s admonition about seeking costs in this case. In bringing these applications, Mrs Chang must have known the likely costs consequences if her applications were unsuccessful. However, in the circumstances of this proceeding, I am satisfied that costs should be set on a 2B basis and that, absent compelling reasons, there is no case for seeking costs above scale.
[67] Given the above, I would expect the parties to be able to settle costs between them. If they are unable to do so:
(a)counsel for Mr Wang may file and serve a memorandum of no more than four pages by 20 December 2024; and
(b)counsel for Mrs Chang may file and serve a memorandum of no more than four pages by 23 January 2025.
G J van Bohemen J
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