Zhang v Westpac New Zealand

[2021] NZCA 8

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA521/2019
 [2021] NZCA 8

BETWEEN	YINGQUI ZHANG Applicant
AND	WESTPAC NEW ZEALAND Respondent

Court:	Miller and Goddard JJ
Counsel:	Applicant in person B J Upton and L B Harrison for Respondent
Judgment: (On the papers)	10 February 2021 at 11.00 am

JUDGMENT OF THE COURT

AThe application for an order that the respondent’s solicitors cease to represent it in this appeal is dismissed.

BThe applicant is to pay costs for a standard application on a band A basis.

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REASONS OF THE COURT

(Given by Miller J)

1. Ms Zhang has brought an appeal against her adjudication in bankruptcy.[1] Before us is an interlocutory application which she has brought in the appeal.  She wants this Court to order that the respondent’s solicitors, Simpson Grierson, cease to represent it in this appeal.

   [1]Zhang v Westpac New Zealand Ltd [2019] NZHC 2422.

2. Ms Zhang’s grounds are somewhat difficult to follow.  A substantial part of her submissions and an affidavit which she has filed in support address the underlying merits of her appeal rather than this application.  However, it is reasonably clear that:

   (a)She claims Simpson Grierson are disqualified from acting for Westpac because they acted for the Bank on a mortgagee sale and failed to obtain the best possible price for the property, so increasing the indebtedness that led to her bankruptcy.  She evidently believes that Simpson Grierson have a conflict of interest with respect to their client; and

   (b)She wants to call as a witness on the appeal Ms Julia Learner, a solicitor at Simpson Grierson who appeared for Westpac as counsel in the High Court on the adjudication hearing.

3. So far as the first of these grounds is concerned, the threshold for removal is high, requiring something extraordinary.[2]  Ms Zhang’s grounds do not begin to approach this threshold.  There is no reason to think that Simpson Grierson’s involvement in the mortgagee sale will preclude them from complying with their duties to the court or from representing their client with objectivity.[3]  There is no reason to think that any advice the firm has given to the Bank will be at issue in the appeal, which appears to turn principally upon a claim that the price achieved on the mortgagee sale was lower than a prior valuation obtained by Ms Zhang.

   [2]Accent Management Ltd v Commissioner of Inland Revenue [2013] NZCA 155, [2013] 3 NZLR 374 at [32].

   [3]Accent Management Ltd v Commissioner of Inland Revenue, above n 2, at [32].

4. So far as the second ground is concerned, we accept that a court may intervene to prevent counsel appearing where counsel may be required to give relevant and contentious evidence.[4]  But there is no reason to think evidence will be led on appeal.  Ms Zhang is not entitled to call it as of right and she has not obtained leave to do so.  Nothing in the material before us suggests there is anything about Ms Learner’s conduct in the adjudication proceeding that is relevant to the appeal.  Her submissions in the High Court are a matter of record.  We observe that she is not counsel on the appeal, though she still works at the firm.

   [4]Beggsv Attorney-General [2006] 2 NZLR 129; and Li v Liu [2018] NZCA 528, [2019] NZAR 259 at [25].

5. Ms Zhang is a lay litigant for whom some allowances may be made.  Nonetheless, this application should not have been brought and she ought to have appreciated that.  She must pay costs for a standard application on a band A basis.  Her application is dismissed.

6. We are not to be taken as expressing a view about the merits of the substantive appeal, which we do not address in this judgment. 

Solicitors:
Simpson Grierson, Auckland for Respondent