You are here:
NZLII >>
Databases >>
Court of Appeal of New Zealand >>
2021 >>
[2021] NZCA 283
Database Search
| Name Search
| Recent Decisions
| Noteup
| LawCite
| Download
| Help
Wang v Lu [2021] NZCA 283 (30 June 2021)
Last Updated: 6 July 2021
|
IN THE COURT OF APPEAL OF NEW
ZEALANDI
TE KŌTI PĪRA O AOTEAROA
|
|
|
BETWEEN
|
JIANPING WANG Appellant
|
|
AND
|
BIN LU First Respondent
WEIHUA ZHANG Second
Respondent
|
Court:
|
Brown, Clifford and Gilbert JJ
|
Counsel:
|
G P Blanchard QC and G E Slevin for Appellant A L Harlowe for
Respondents
|
Judgment: (On the papers)
|
30 June 2021 at 10.30 am
|
JUDGMENT OF THE COURT
- The
application to correct the judgment under r 8 of the Court of Appeal (Civil)
Rules 2005 is declined.
- The
respondents are to pay the appellant costs on the present application on a band
A basis plus usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Introduction
- [1] This is an
application by the respondents, Mr Bin Lu and Ms Weihua Zhang, to this
Court to correct — under the slip
rule[1] — what they say is the
incorrect intitulement of this Court’s judgment Wang v
Lu.[2]
Mr Jianping Wang, who was the successful appellant in that judgment,
opposes.
Analysis
Mr Wang’s High Court proceedings
- [2] Mr Wang
is a judgment creditor of a Mr Jihong Lu (Mr J Lu). The respondents are
respectively the brother, Mr Bin Lu (Mr B Lu),
and the mother, Ms Weihua Zhang,
of Mr J Lu. Mr J Lu is deceased.
- [3] Before Mr J
Lu died Mr Wang had commenced recovery actions against him, including by
the issue of a bankruptcy notice. Mr J Lu
did not comply with that notice.
- [4]
On becoming aware of Mr J Lu’s death Mr Wang commenced proceedings
by way of an originating application to have Mr J Lu’s
estate administered
as an insolvent estate under pt 6 of the Insolvency Act
2006.[3] He did so under the
following intitulement:
- [5] Mr J Lu died
in Taipei, Taiwan, on or about 21 January 2020. Mr Wang commenced his
application for a pt 6 order on 7 May 2020.
At that point in time,
Mr Wang had no formal evidence of Mr Lu’s death, nor of the existence
of any will.
- [6] Mr Wang’s
interlocutory application was served on the first and second respondents, Mr B
Lu and Ms Zhang and set down for
an on notice hearing on 30 July 2020.
- [7] During the
course of that hearing Wylie J noted Mr Wang had not explicitly sought an order
that Mr Lu’s estate be administered
under pt 6: rather, he had
applied for a named insolvency practitioner to be appointed to carry out that
task.[4] As a result, counsel for
Mr Wang made an oral application for the originating application to also be
treated as an application to
that
effect.[5]
- [8] Mr B Lu and
Ms Zhang opposed, citing concerns for other
creditors.[6] The Judge declined
Mr Wang’s application as a
result.[7]
- [9] Subsequently
the Judge granted leave for Mr Wang to appeal that
ruling.[8]
- [10] The two
High Court judgments leading to the appeal to this Court and, following Mr
Wang’s success in that
appeal,[9] the High Court’s
subsequent costs award in Mr Wang’s
favour,[10]
have all been delivered under the intitulement set out at [4] above.
This
proceeding
- [11] Mr Wang
commenced his appeal in this Court under the intitulement which appears on the
face of this judgment. That intitulement
was used throughout the course of that
appeal, including by the respondents:
(a) in their reply consenting
to Mr Wang’s fast track application;
(b) on their notices of appearance; and
(c) on the written submissions of Mr Harlowe on their joint behalves.
- [12] The
respondents opposed Mr Wang’s application to this Court for
dispensation from security for costs. In her decision,
granting that
application in part, the Deputy Registrar observed:
[11] I do
not accept the appellant’s submission that the proceeding does not affect
the respondents’ interests and that
security for costs is therefore
not warranted. Although the respondents accept they will not suffer
prejudice from the substantive
application, they consider other beneficiaries
could. Both respondents opposed the application in the High Court on this
basis.
They also clearly intend to defend the appeal. They are represented by
counsel and a timetable has been set for appellant and respondent
submissions.
[12] I am satisfied the respondents have a genuine interest in the
proceeding, even if they will not suffer prejudice from it. In
my view, they
are entitled to security for their costs of defending the appeal like any other
respondent, pursuant to r 35.
(Footnotes omitted.)
- [13] We released
our judgment on 21 December
2020.[11]
Wrong
intitulement — a slip?
- [14] The
question of correct intitulement was first raised by counsel for
Mr B Lu and Ms Zhang in a memorandum of 18 February 2021.
As
relevant, Mr Harlowe and Ms Davenport QC explained:
- Counsel
respectfully requests that this error in the intituling of the judgment in
Wang v Lu [2020] NZCA 673 be remedied using the slip rule so as to mirror
the correct intituling of the judgment regarding leave to appeal. ... Mr Bin Lu
has no standing in this appeal as he is not the executor of the estate of Jihong
Lu (as probate is still not resolved) and it would
be improper for the
intituling to retain this error as it carries with it a requirement that the
first respondent pay costs.
- [15] Mr Slevin,
counsel for Mr Wang filed a memorandum the next day. He explained:
- It
is apparent that the changes sought by counsel for the respondents are outside
the scope of the slip rule and could only be made
if the judgment was
recalled or successfully appealed. Their objective is to deprive the appellant
of the benefit of the Court’s
judgment on costs. Costs were
discussed at the hearing with no objections being raised by
counsel.
- [16] Mr Harlowe
filed a further memorandum in reply dated 19 February 2021. He said:
- At
the end of the hearing both Counsel agreed the scaled rate (1A), but there was
no discussion or agreement as to quantum and/or
liability.
- [17] In a minute
of 1 March 2021, we declined to consider a slip rule correction of our own
motion. If the respondents wished to
pursue the matter an interlocutory
application was to be made. We suggested time and money might be better spent
on more substantive
issues, noting the active part Mr B Lu and Ms Zhang had
played thus far.
Application for correction of
“slip”
- [18] Notwithstanding
such an application was filed on 5 March 2021. In essence, Mr B Lu
argues:
(a) He appeared in the High Court “on behalf of
the estate” as the personal representative.
(b) Leave for the appeal was granted on the basis that costs would be payable
by the estate and not by Mr B Lu personally. The judgment
granting leave
correctly recorded Mr Lu and Ms Zhang as interested parties.
(c) As a result of Mr Wang’s actions in adopting the allegedly
incorrect intitulement, the judgment (of this Court) contains
an error, namely
the incorrect intituling and a subsequent order that Mr B Lu as respondent pay
costs.
(d) The practical effect of the error in the intituling is that
Mr B Lu is personally liable for $17,013.09 of Mr Wang’s costs,
because of an error by counsel for Mr Wang.
(e) That error should be corrected.
Our assessment
- [19] In our view
that narrative establishes that this application is fundamentally misconceived.
- [20] We say that
for the following reasons:
(a) As noted in our
decision,[12] Mr Wang commenced
his pt 6 application by way of originating application without — as
permitted by the High Court Rules 2016
— naming a respondent. At the
same time, he applied for orders as to service on Mr B Lu and Ms Zhang.
(b) Mr B Lu and Ms Zhang were duly served and, as noted, they filed notices
of opposition and appeared at the hearing of the substantive
application to
oppose. They also opposed, successfully, the application for the originating
application to also be treated as an
application for an order that
Mr J Lu’s estate be administered under pt 6.
(c) They both participated fully as respondents to the appeal, by opposing
leave, filing appearances opposing dispensation of security
for costs and making
submissions at the substantive hearing.
(d) At the end of that hearing, and as Mr Harlowe correctly observed, counsel
agreed the scale rate. That there was no explicit discussion
as to quantum
and/or liability is unsurprising: quantum is never discussed and unless, due to
some aspect of the hearing, the Court
or counsel raise the matter, costs follow
the event.
- [21] It was only
on their receipt of the draft order for sealing that the respondents’
concern as to the mode of intitulement
was raised. That concern is, in reality,
a concern as to liability for costs, as they accept.
- [22] There has
been no accidental slip or omission. The real question is the substantive
effect of the costs order against Mr B Lu
and Mrs Zhang, whether described as
respondents or interested parties. As regards that:
(a) The
respondents had participated in these proceedings at each stage in opposition to
Mr Wang’s applications.
(b) In doing so they have acted as parties and have been accorded the rights
of parties.
(c) That was the basis of the award of costs on the appeal in this Court
against the respondents, not simply their position as named
parties.
- [23] We note the
High Court reached similar conclusions in awarding costs to Mr Wang
following his successful appeal to this
Court.[13]
- [24] It would,
therefore, be a misuse of the slip rule to grant the respondents’
application which is, in effect, an appeal
against the substance of our award of
costs. We consider that award to be one properly made in the ordinary course.
Result
- [25] The
application to correct the judgment under r 8 of the Court of Appeal (Civil)
Rules 2005 is declined.
- [26] The
respondents are to pay the appellant costs on the present application on a band
A basis plus usual disbursements.
Solicitors:
Davidson Legal, Christchurch for Appellant
Couch Harlowe Kovacevich,
Auckland for Respondents
[1] Court of Appeal (Civil) Rules
2005, r 8.
[2] Wang v Lu [2020] NZCA
673.
[3] Insolvency Act 2006, s 381.
[4] Re Lu [2020] NZHC 1894
at [19].
[5] At [11].
[6] At [12].
[7] At [14].
[8] Re Wang [2020] NZHC
2415.
[9] Wang v Lu, above n 2.
[10] Re Lu [2021] NZHC
631.
[11] Wang v Lu, above n
2.
[12] Wang v Lu, above n
2, at [8].
[13] Re Lu, above n 10, at [11].
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2021/283.html