Chang-Hooker v Rooke [2012] NZHC 2819 (26 October 2012)

Last Updated: 18 December 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-6074 [2012] NZHC 2819

BETWEEN SANDY CHANG-HOOKER Appellant

AND DAVID JOHN ROOKE Respondent

Hearing: 23 October 2012

Counsel: Appellant in Person

D Wu for the Respondent

Judgment: 26 October 2012

_{JUDGMENT OF ELLIS J}

This judgment was delivered by me on 26 October 2012 at 10 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: David Rooke, PO Box 64 342, Manukau 2142

Copy To: S Chang-Hooker, 33 Kilimanjaro Drive, Auckland 2013

CHANG-HOOKER V ROOKE HC AK CIV-2011-404-6074 [26 October 2012]

[1] Ms Chang-Hooker seeks a stay of the orders listed at [6] below. The application arises in the context of the conduct of her appeals (or purported appeals) from various decisions of the District Court which have their origins in a longstanding debt claim by the respondent for unpaid legal fees. The ambit of the stay application, however, goes beyond simply the orders made as a result of those decisions.

[2] The relevant background has been set out by Goddard J in her judgment dated 18 July 2012. There, she said:[1]

[3] On 22 November 2010, Mr Rooke obtained judgment in the District Court at Manukau against Ms Chang-Hooker in the sum of $22,512.71, comprising the balance of $9,478.20 owed for legal services billed in 2005, plus interest and costs. The judgment was entered after Ms Chang-Hooker had taken no steps to file a response to the claim or an information capsule. Judgment was entered by a Deputy Registrar and sealed the same day.

[4] On 18 January 2011, Judge Andree Wiltens, after considering a memorandum filed by Mr Rooke on 12 October 2010, struck out a counterclaim subsequently filed by Ms Chang-Hooker.

[5] Ms Chang-Hooker then applied to set aside the 22 November 2010 judgment. At an interlocutory hearing on 27 June 2011, Judge Andree Wiltens made the following orders and directions:

1. Applicant wants to proceed – will do it herself;

2. To file submissions by 11/07/2011;

3. Respondent to respond by 18/07/2011;

4. Two (2) hours hearing required to be set by Registrar;

5. Costs to Respondent for today, memorandum to be filed in 14 days.

[6] On 28 July 2011, Judge Andree Wiltens made the following further directions:

1. Costs fixed at $2,051 to be paid by defendant within 14 days.

2. In default defence application to be struck out.

[7] On 16 September 2011, after failing to pay the costs as directed, Judge Andree Wiltens struck out Ms Chang-Hooker’s application to set aside the judgment of 22 November and ordered her to pay costs totalling

_{$7,775.29 in the following terms:}

1. Costs were to be paid 14 days from 25/07/2011;

2. In default, the defendant’s action to set aside the judgment was to

be struck out;

3. Costs have not been paid;

4. Application to set aside therefore struck out;

5. Costs to plaintiff $7,775.29.

[8] Her application to set aside the default judgment having failed, Ms

Chang-Hooker then sought the leave of this Court to appeal out of time the

22 November 2010 judgment, and also the decisions of 18 January, 27 June and 28 July 2011 that had followed consequent upon her non-compliance

with lawful orders. She also sought to stay execution of those decisions

pending the hearing of her appeal against the judgment of 22 November

2010.

[9] Ms Chang-Hooker filed her notice of appeal on 30 September 2011. The grounds stated were that the determinations of Judge Andree Wiltens were wrong in fact and in law. Ms Chang-Hooker also requested a stay of execution as Mr Rooke had advised her in writing on 21 September 2011 and he intended to take bankrupt proceedings against her.

...

[12] Ms Chang-Hooker’s application for leave to appeal out of time in respect of the 22 November 2010 judgment and the further decisions of the District Court was set down for hearing in the High Court on 13 March

2012. Mr Rooke appeared on that date but Ms Chang-Hooker failed to appear. In the course of dismissing the application, Brewer J made the

following pertinent observations:

I have had an opportunity to read the papers prior to coming to Court. Ms Chang-Hooker had an insurmountable task on the papers because, firstly, there are inadequate explanations as to why appeal rights were not exercised within time and, secondly, the merits she puts forward are not able to be adjudicated properly on appeal.

I further note there is one appeal which is within time. It relates to the last of the series of decisions, made in the District Court on 16

September 2011. That appeal is due to be heard in this Court on 22

March 2012. If it is successful, it might give Ms Chang-Hooker a means of re-opening the chain of earlier decisions in any event.

However, on the merits, Ms Chang-Hooker is essentially saying that Mr Rooke has deliberately breached District Court Rules and has, in her words, lied to the Court on purpose. In essence, she is submitting that he has obtained decisions of the Court through fraud. Where those sorts of allegations are made, the proper course is not to seek to appeal to a higher Court but to file fresh proceedings in the Court in which it is alleged the fraud was committed and then seek to prove the fraud. Of course, failure to do so will meet a stern response when it comes to costs.

In these circumstances, I am satisfied there is no point in the applications proceeding and I dismiss them accordingly.

[13] On 22 March 2012, the parties appeared before Hansen J. Ms Chang-Hooker had not, at that stage, filed an application to set aside the judgment of Brewer J, although she signalled her intentions to do so. Mr Rooke sought to persuade Hansen J to proceed to determine the one decision of the District Court (the decision of Judge Andree Wiltens of 16 September

2011) that was not out of time and thus did not require the leave of the Court to appeal out of time. Hansen J expressed the view that there was no prospect of that particular appeal succeeding while the earlier decisions stood. Therefore he declined to deal with the appeal from that decision only and adjourned the hearing to await the disposal of any challenge to Brewer J’s judgment.

[3] It was the application by Ms Chang-Hooker to have Brewer J’s judgment

recalled with which Goddard J was concerned. She declined that application.

[4] The respondent has taken steps to enforce the various orders against

Ms Chang-Hooker, including the initiation of bankruptcy proceedings.

[5] However as a result of a comment made in Goddard J’s judgment of 18 July, Ms Chang-Hooker has now (on 6 August 2012) filed a complaint with the New Zealand Law Society in which she alleges over-charging and other malpractices by the respondent. It was the making of that complaint that prompted her to seek a stay of “all District Court orders and High Court orders” to which she and the respondent are parties, in the meantime. But included in those orders is a costs judgment of

Christiansen AJ dated 29 August 2012 relating to the bankruptcy matter.[2]

[6] Thus the judgments of which Ms Chang-Hooker seeks a stay are accordingly as follows:

(a) District Court default judgment dated 22 November 2011;

(b) District Court judgment dated 18 January 2011 striking out

_{Ms Chang-Hooker’s counterclaim;}

(c) District Court costs judgment dated 27 June 2011;

(d) District Court judgment dated 28 July 2011 (striking out application for rehearing due to non-compliance with rules);

(e) District Court judgment dated 16 September 2011; (f) Judgment of Brewer J dated 13 March 2012;

(g) Judgment of Goddard J dated 18 July 2012;

(h) Judgment of Associate Judge Christiansen dated 29 August 2012.

[7] Insofar as the first four District Court decisions are concerned, this Court has declined Ms Chang-Hooker leave to appeal out of time against those decisions. No appeals against the decisions of either Brewer of Goddard JJ have been filed.[3] Thus the reality is that those decisions relate to matters that are no longer “live” before this Court; there is nothing in this Court that can be stayed. To the extent that Ms Chang- Hooker nonetheless asks this Court to stay orders of the District Court, in my view

this Court has no jurisdiction to do so. I consider that it would be wrong in principle to stay execution of a judgment given in the District Court in circumstances where an appeal to (or review by) this Court is neither pending nor (in the case of an appeal) possible.

[8] The only “live” appeal relates to the 16 September 2011 decision. But as was previously noted by Rodney Hansen J that appeal’s prospects of success are necessarily contingent on Ms Chang-Hooker’s ability to revisit or overturn the earlier decisions. And Ms Chang-Hooker’s attempts to upset those earlier decisions have failed and cannot be taken further. It follows that the likelihood of her

_{succeeding in this extant appeal is remote, at best.}

[9] In the absence of any appeal from, or application for review of, the decision of Christiansen AJ there is no basis upon which a stay of that judgment can be granted, either.

[10] For completeness I record that, as I understood it from Ms Chang-Hooker’s

submissions, her principal concerns are:

(a) That the Courts have never dealt with the merits of her complaints about the respondent because her various proceedings/appeals have been struck out on procedural grounds;

(b) Her position might be vindicated by the NZLS in due course (which would potentially undermine the very basis of the respondent’s debt proceedings which are what led to the chain of events with which she is now concerned).

[11] The correctness of the first point is indisputable. But there is nothing that I am able to do about that. All that has ever been before this Court are Ms Chang- Hooker’s appeals (or purported appeals) against particular decisions of the District Court. Those decisions are confined to the matters with which they deal and Ms Chang-Hooker cannot ask this Court to deal with different issues on appeal. This is the point made by Brewer J. Granting a stay would not affect the reality of that position.

[12] Similarly, while it may well be regrettable that Ms Chang-Hooker was not alerted to the possibility of making a complaint to NZLS earlier, that can have no bearing on the present application. The outcome of the complaints process would

_{have no direct bearing on the matters raised by the appeals.}[4]

[13] Ms Chang-Hooker has placed no evidence before the Court that she is unable to pay the judgment debts and indeed that appears unlikely.[5] It seems that when bankruptcy is threatened, payments can be made.

[14] The applications for stay are dismissed accordingly.

[15] To the extent Ms Chang-Hooker wishes to pursue her appeal against the

16 September 2011 decision, she is to advise the Court by way of memorandum by no later than 5 pm on 9 November 2012.

[16] The appeal is to be called in the next Civil Appeals List at 9 am on Tuesday

13 November. If no memorandum from Mrs Chang-Hooker has been received then the respondent may apply to have the appeal formally dismissed. Otherwise a

_{fixture will be allocated.}

_{Rebecca Ellis J}

---

[1] Chang Hooker v Rooke [2012] NZHC 1747.

[2] As I understand it Mrs Chang-Hooker had costs awarded against her after she had (successfully) applied to have the bankruptcy notice set aside on the grounds that she had paid the underlying debt, namely the debt arising as a result of the costs award made by Brewer J following his decision on the application for leave to appeal out of time.

[3] I hasten to say that this is not to be taken by Ms Chang-Hooker as a suggestion that any such appeal could or should be brought.

[4] That said, however, I accept that, to the extent that Ms Chang Hooker’s complaint about the respondent (which I have not seen) might either partly or wholly be upheld, there might be consequential issues that would require resolution between her and the respondent. But even then, they could not be dealt with in the appeals.

[5] Notwithstanding the fact that the stay application was filed some time ago and my clear minute last week that the stay application would be heard during the appeals list on 23 October Ms Chang- Hooker asked me when the matter was called for further time to file an affidavit in support of the application and (necessarily) for an adjournment of the hearing. I declined her request.