Yi Hua Jiao and others v Barge [2006] NZCA 109 (31 May 2006)

Last Updated: 22 June 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA236/05

BETWEEN YI HUA JIAO
First Appellant

AND YI HUA JIAO AND OTHERS
Second Appellants

AND IVAN BARGE
Respondent

Hearing: 31 May 2006

Court: William Young P, Chambers and Arnold JJ

Counsel: A C Beck for Appellants
M J Fisher for Respondent

Judgment: 31 May 2006

JUDGMENT OF THE COURT

A The extension of time is granted on the basis that the case, together with an additional $30,000 by way of security for costs, is lodged by 9 June 2006.

B If these conditions are not satisfied, the appeal will be deemed abandoned.
C Mr Beck’s submissions are to be filed and served by 9 June and Mr Fisher’s by 16 June.

D The costs of today’s hearing are reserved.

REASONS
(Given by William Young P)

Introduction

[1]	The appellants did not lodge their case on appeal within the time required by the rules. They did however seek an extension of time in a timely way. That is opposed by the respondent,

The governing principles

[2]	Airwork (NZ) Limited v Flight Management Limited [1999] 1 NZLR 29 supports the view that it is for the appellant, in a situation such as this, to show that the appeal is not devoid of merit.
[3]	Mr Beck for the appellants maintained that this approach is too strict. He noted that the six month rule is a little more flexible under the Court of Appeal (Civil) Rules 2005 than under the 1997 Rules which were in issue in Airwork. He also referred to the New Zealand Bill of Rights Act 1990 and in particular s 27 and maintained that the extension of time which he sought was essentially a case management issue. He stressed the fact that the appellants applied for and obtained a prompt fixture in respect of which no adjournment was sought and suggested that there can be no substantial prejudice to the respondent associated with the delay.
[4]	There is much force in what Mr Beck said. On the other hand, as a result of enforcement proceedings in the High Court, the appellants have been on notice since late last year of the necessity to get on with the appeal.

The appellants’ grounds of appeal

[5]	At trial the appellants did not fully engage with the allegations which were made against them and largely confined their defence to an endeavour to uphold the validity of the mortgagee sale. No evidence was called on their part. Priestley J made some very strong findings of fact against the appellants. This does not provide the most auspicious context for an appeal.
[6]	The issues which Mr Beck maintains are arguable are as follows:
(a)	The status of Mr Chiao as a mortgagee at the time he gave the Property Law Act notice.
(b)	The validity of the purported mortgagee sale.
(c)	Challenges to the findings of liability for inducing a breach of contract and conspiracy.

Evaluation

[7]

Given the course we propose to take, the less we say about the merits or otherwise of the appellants’ proposed arguments the better. We did share our views with counsel in the course of the hearing. It is sufficient to say that some at least of the arguments advanced by Mr Beck cannot be rejected as necessarily being without merit.

[8]

On the other hand, the reality is that there are extremely strong findings against the appellants and the appellants are responsible for their present predicament. In the circumstances of case as a whole (including particularly the findings made against them), the appellants face a substantial risk of an award of indemnity costs should the findings of the High Court be upheld. To ensure that such an order for costs can be enforced, we propose to make the extension of time we intend to grant conditional upon a payment into court by the appellants of an additional $30,0000 by way of security for costs.

Result

[9]	The extension of time is granted on the basis that the case, together with $30,000 by way of security for costs, is lodged by 9 June. If these conditions are not satisfied, the appeal will be deemed abandoned.
[10]	Mr Beck’s submissions are to be filed and served by 9 June and Mr Fisher’s by 16 June.
[11]	The costs of today’s hearing are reserved.

Solicitors:
Murdoch Hall, Auckland for Appellants
Castle Brown, Auckland for Respondent