Xing v Yu [2023] NZCA 382 (23 August 2023)

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	BETWEEN	ZHONG XING Appellant
	AND	JICAI LI AND FANG YU First Respondents YUN ZHENG Second Respondent WEN CHEN Third Respondent ZHONG WEI ZHOU Fourth Respondent BO LIN Fifth Respondent JIYUAN WU Sixth Respondent FANG YU Seventh Respondent WMW TRUSTEE LIMITED Eighth Respondent YANGXUAN WANG AND MENGQUI WANG Ninth Respondents XIN ZHAO Tenth Respondent ZELIX TRADING LIMITED Eleventh Respondent QIN XIN ZENG AND AIXUAN GUO Twelfth Respondents JCM NZ LIMITED Thirteenth Respondent YIKAI CHEN Fourteenth Respondent CHEN FENGLIANG AND MING DENG Fifteenth Respondents ZHIREN ZHANG Sixteenth Respondent LOVE HOMES LIMITED Seventeenth Respondent ER XIA CAO AND ER SHENG CAO (AS TRUSTEES OF ZION TRUST) AND ER SHENG CAO AND ER XIA CAO (AS TRUSTEES OF CAO TRUST) TOGETHER WITH JUN WU Eighteenth Respondents JASVINDER SINGH AND TINA SINGH Nineteenth Respondents GREEN LAND INVESTMENT LIMITED Twentieth Respondent REGISTRAR-GENERAL OF LAND Twenty-First Respondent LEQUN ZHAO Twenty-Second Respondent XING ENTERPRISES LIMITED Twenty-Third Respondent TRINITY HOPE INVESTMENT LIMITED Twenty-Fourth Respondent FLATBUSH LAND LIMITED Twenty-Fifth Respondent HIU CHING CHAN Twenty-Sixth Respondent

Court:	Brown and Goddard JJ
Counsel:	Appellant in person R O Parmenter for First to Seventeenth and Nineteenth Respondents K H Morrison and T Y Yao for Eighteenth Respondents M E Casey KC for Twenty-Sixth Respondent No appearance for Twenty-Third, Twenty-Fourth and Twenty‑Fifth Respondents
Judgment: (On the papers)	23 August 2023 at 10.30 am

The application for a stay is declined.
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[1] This judgment addresses an application by the appellant for a stay of his own appeal.

[2] On 1 September 2022 the appellant filed a notice of appeal against the High Court liability judgment Li v Green Land Investment Ltd.^[1] The appellant’s application for an order dispensing with the requirement to pay security for costs was declined by the Deputy Registrar on 29 November 2022. An application for review of that decision was declined by Gilbert J on 14 February 2023.^[2] An application for leave to appeal to the Supreme Court was dismissed on 19 June 2023.^[3] Security for costs remains unpaid.

[3] On 7 June 2023 Jagose J delivered a remedies judgment.^[4] The appellant has filed an appeal in that matter, CA312/2023. Security for costs set at $21,180 was payable by 10 July 2023. It has not been paid, nor has an application for dispensation been filed.

[4] On 7 July 2023 the appellant filed a memorandum seeking a stay of his appeal until the “full determination” of an application to strike out the statement of claim dated 23 August 2021 in the High Court proceeding CIV-2021-404-1511. Annexed to the stay application was a copy of an interlocutory application dated 7 July 2023 filed in the High Court seeking an order striking out the statement of claim in CIV‑2021‑404‑1511.

[5] On 25 July 2023 the first to seventeenth respondents and the nineteenth respondents filed a memorandum in opposition on grounds including that the strike‑out application in the High Court had been dismissed. On 4 August 2023 the eighteenth respondents filed a memorandum in opposition on grounds which also included the dismissal of the strike-out application.

Because I already have decided the plaintiffs’ claim (which decisions I understand Mr Xing both to have appealed and to have sought stayed), Mr Xing’s 7 July 2023 application to strike out the plaintiffs’ first cause of action plainly is an abuse of process: “improper use of [the court’s] machinery” (Simon Goulding, DB Casson and William Blake Odgers Odgers on Civil Court Actions (24^th ed, Sweet & Maxwell, London 1996) at [10.15], as cited in Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [87]); use of that process “for a purpose or in a way significantly different from its ordinary and proper use” (Attorney-General v Barker [2000] 1 FLR 759 (QBD) at 764). In the exercise of my inherent jurisdiction to prevent abuses of process, and without requiring the plaintiffs’ opposition, I dismiss Mr Xing’s 7 July 2023 application. By analogy with HCR 5.35B, because I have made that order on my own initiative without giving Mr Xing opportunity to be heard, he has the right to appeal against my decision.

[7] In these circumstances it is evident that the basis on which the appellant sought an order staying his appeal has ceased to exist. Consequently his application for a stay is without merit and is declined.

Solicitors:
Carson Fox Bradley Ltd, Auckland for First to Seventeenth and Nineteenth Respondents
Meredith Connell, Auckland for Eighteenth Respondents
Duthie Whyte, Auckland for Twenty-Sixth Respondent

Court of Appeal of New Zealand

Xing v Yu [2023] NZCA 382 (23 August 2023)