Zeng v Cai

[2016] NZHC 463

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2014-404-2012

[2016] NZHC 463

BETWEEN

JIAN QIANG ZENG

Plaintiff

AND

OU CAI

First Defendant

AND

FANG LI

Second Defendant

Hearing:

10 March 2016

Counsel:

CJR Baird for the Plaintiff to oppose

A Manuson for the Defendants in support

Judgment:

17 March 2016

JUDGMENT OF TOOGOOD J

[Application for leave to bring review application out of time - Result]

This judgment was delivered by me on 17 March 2016 at 4:30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

ZENG v OU CAI [2016] NZHC 463 [17 March 2016]

[1]    On 28 July 2015, Bell AJ made discovery and other orders in an oral judgment,  the   written   transcript   of   which   was   released   to   the   parties   on 7 September 2015.¹ On 24 November 2015, the first and second defendants filed an application for review, under s 26P(1) of the Judicature Act 1908, of the Associate Judge’s decision. Rule 2.3(2)(a) of the High Court Rules provides that, unless a Judge or an  Associate  Judge  directs  otherwise,  an  application  for  review  under s 26P(1) if made by a party who was present or represented when the decision was given, must be made within five working days of the decision. The application was admittedly filed out of time, 84 working days after the decision. The plaintiff opposed the application.

[2]    Whether to grant an application for leave to apply for a review out of time should be granted involves the exercise of judicial discretion. The essential question in any case is to consider where the interests of justice lie, an exercise which involves weighing the prejudice which would be suffered by an unsuccessful applicant for leave against that which would be suffered by an unsuccessful opponent.² The factors which the Court should take into account include: ³

(a)the lapse of time between the expiry of the period when a review may be brought as of right and the filing of the leave application;

(b)the explanation for the delay;

(c)the substance or merit of the proposed review application;

(d)the need to ensure that a proceeding as a whole is dealt with expeditiously; and

(e)the consideration that a party seeking an indulgence carries the burden of justifying it.

1      Zeng v Cai [2015] NZHC 1798.

2      Body Corporate 325261 v Stephen Mitchell Engineers Ltd [2014] NZHC 761 at [15].

3      At [15]-[18], adopting Sutton v New Zealand Guardian Trust Co Ltd (1989) 2 PRNZ 111 (HC) at 113.

[3]    The  proceeding  is   scheduled   for   a   five-day   hearing   beginning   on  15 August 2016, to determine a separate question before trial about whether the plaintiff and the first defendant were ever in a qualifying de facto relationship under s 2D of the Property (Relationships) Act 1976, and, if so, its duration. Determination of that question will affect decisions as to the jurisdiction of the Court to address substantive issues in the proceeding.

[4]    Under the current timetable, the first defendant is due to serve her affidavit evidence by 8 April 2016, the plaintiff being required to serve his affidavit evidence by 3 June 2016. Compliance with discovery orders is necessary if the parties are to have a fair and reasonable opportunity to draft their affidavit evidence. In view of  the time constraints, therefore, I am satisfied that a decision on the application for review should be made promptly.

Decision

[5]    For reasons which will be given in a separate Reasons judgment in due course, I dismiss the application for leave to apply out of time for a review of the decision of Bell AJ dated 28 July 2015. Costs on the leave application are reserved. A timetable for the filing of memoranda as to costs will be set out in the Reasons judgment.

…………………………

Toogood J