Zhang v Westpac New Zealand Limited

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA521/2019
[2022] NZCA 134

BETWEEN	YINGQIU ZHANG Appellant
AND	WESTPAC NEW ZEALAND LIMITED Respondent

Counsel:	Appellant in person B J Upton and L B Harrison for Respondent
Judgment: (On the papers)	13 April 2022 at 2 pm

JUDGMENT OF GILBERT J

The application for a stay of execution is dismissed.

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REASONS

Ms Zhang defaulted on loans obtained from Westpac and secured by registered mortgages over two properties. There was a shortfall following sale of these properties by Westpac as mortgagee. Westpac then obtained summary judgment against Ms Zhang for the shortfall.
Following non-payment of the judgment sum, Westpac served a bankruptcy notice on Ms Zhang. The High Court declined Ms Zhang’s application to set aside the bankruptcy notice and adjudicated her bankrupt.[1] Ms Zhang’s appeal against this judgment was dismissed by this Court on 10 December 2021.[2]
[1]Zhang v Westpac New Zealand Ltd [2019] NZHC 2422.
[2]Zhang v Westpac New Zealand Ltd [2021] NZCA 672.
Ms Zhang then applied for leave to appeal to the Supreme Court. She also applied to this Court for a stay of execution of the judgment pending determination of her application for leave to the Supreme Court. This latter application is now before me for determination on the papers.
The application for a stay of execution must be dismissed because the Supreme Court has now declined leave for Ms Zhang’s proposed appeal.[3] The application for a stay of execution pending further appeal is therefore moot.

Result

[3]Zhang v Westpac New Zealand Ltd [2022] NZSC 34.

The application for a stay of execution is formally dismissed.

Solicitors:
Simpson Grierson, Auckland for Respondent

CaseChat Overview and Summary

Yingqiu Zhang appealed against Westpac New Zealand Limited in the Court of Appeal of New Zealand. Zhang defaulted on loans secured by mortgages over two properties, leading to a shortfall after Westpac sold the properties. Westpac obtained a summary judgment against Zhang and subsequently served a bankruptcy notice. The High Court declined Zhang's application to set aside the bankruptcy notice and declared her bankrupt. Zhang's appeal against this decision was dismissed by the Court of Appeal. Zhang applied for leave to appeal to the Supreme Court and sought a stay of execution pending the determination of that application. The Court of Appeal considered the application on the papers.

The Court of Appeal was required to decide whether to grant a stay of execution of the judgment while Zhang's application for leave to appeal to the Supreme Court was being considered. This decision hinged on whether the proposed appeal to the Supreme Court was likely to succeed and whether a stay of execution was necessary to prevent injustice. The Court also had to consider the Supreme Court's recent refusal of leave for Zhang’s proposed appeal, which rendered the stay of execution application moot.

The Court of Appeal dismissed the application for a stay of execution. The Court noted that the Supreme Court had already declined leave for Zhang’s proposed appeal, making the application for a stay of execution moot. As a result, the Court found it unnecessary to consider the merits of the application for a stay of execution. Consequently, the application was formally dismissed.

The Court of Appeal formally dismissed the application for a stay of execution of the judgment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established