Fung v Westpac New Zealand Limited [2012] NZHC 2836 (29 October 2012)

Last Updated: 7 November 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-005170 [2012] NZHC 2836

BETWEEN RONNY CHEE HENG FUNG Plaintiff

AND WESTPAC NEW ZEALAND LIMITED First Defendant

AND MORTGAGE MANAGERS LIMITED Second Defendant

AND TONY GOH Third Defendant

Hearing: 29 October 2012

Appearances: No appearance for plaintiff

L M Lim for first defendant

Second and third defendants not served

Judgment: 29 October 2012

_{(ORAL) DECISION OF ASSOCIATE JUDGE ABBOTT}

Solicitors:

Simpson Grierson, Private Bag 92518, Auckland

Also to:

_{R Fung, PO Box 51578, Pakuranga, Auckland}

RONNY CHEE HENG FUNG V WESTPAC NEW ZEALAND LIMITED HC AK CIV 2012-404-005170 [29

October 2012]

[1] This proceeding has come before me this morning for a resumption of the initial case management conference for this proceeding. The first defendant has applied orally to strike it out. For the reasons I will now give I consider that it should be struck out.

Background

[2] There is a very lengthy history to this matter. The plaintiff’s contentions against the first defendant have already been the subject of five judgments, commencing in the District Court at Manukau on 28 March 2011, and ending in the Court of Appeal with a hearing on 17 July 2012 and a judgment against the plaintiff on 26 July 2012). The claims in this proceeding, at least with respect to the first defendant, appear to be a regurgitation of the disputes previously raised and determined against him in those five judgments.

[3] The first conference was originally scheduled for 18 October 2012. On the day of the conference the plaintiff informed the Registrar that he was unable to attend because he had to take his sick daughter to hospital. Ahead of the first conference, counsel for the first defendant filed a memorandum setting out a concise analysis of the history and why it was contended that the claim simply repeated matters already determined.

[4] The memorandum was supported by an affidavit annexing correspondence from the first defendant’s solicitors to the plaintiff warning him that his issues had already been determined, and noting that the proceeding had not been served properly on the first defendant. The affidavit attached a copy of an attempted appeal by the plaintiff to the Supreme Court, and correspondence from the Supreme Court to the plaintiff dated 21 August 2012 advising that there was no right of appeal and the application for appeal could not be accepted for filing. What is significant is that the purported notice of appeal did not raise any obviously new points to those addressed in the preceding judgments, and the present statement of claim does no more, at least in respect of the first defendant.

[5] As indicated in the first defendant’s memorandum, counsel applied orally for strike out at the conference. However, in light of the advice to the Registrar, I gave the plaintiff one last opportunity to show that there was some new issue to be determined, which affected the first defendant. Against the very lengthy history (in terms of number of decisions), and the plaintiff’s apparent inability to accept decisions against him (as further evidenced by another proceeding against a different

bank),[1] I also required the plaintiff to file a memorandum ahead today’s conference

setting out concisely what new matters he was raising and how he intended to support those matters, and to provide evidence of his daughter’s hospitalization at the time of the last conference.[2] The plaintiff was required to file and serve those by

5pm on 25 October 2012.

[6] The plaintiff emailed a document described as a “submission” to the Court around 6.20am this morning. I imagine that he intended this to be the memorandum that he was required to file and serve by 5pm on 25 October 2012. In this last document, he has requested that the Court adjourn the conference until he can serve the second and third defendants. As far as the first defendant goes, he simply repeats earlier claims that the first defendant has told a lie to the Court, which should be regarded as introducing a contention of fraud, allowing him to revive all previous arguments. He does not give particulars of the lie, either as to its substance or as to the occasions on which it is alleged to have been given to the Court (or indeed which Court). He states that he needs to serve the second and third defendants, probably by substituted service (as “both of them deny to accept service” [sic]), and contends that once he has done that he will be able to prove the first defendant’s lie “to District court until to Court of Appeal” [sic]. He does not say how it assists his case against the first defendant for him to serve the second and third defendant. He requests an

_{adjournment of the conference until he can serve the second and third defendants.}

Hearing today

[7] The plaintiff has not appeared today, nor given any reason for not doing so. He was advised in the Court’s minute of the 18 October 2012 conference that this conference was to be held face to face.

[8] Against all of the above background, counsel for the first defendant repeats its application to strike out the present proceeding against it. In the minute of 18

October 2012, I stated that I would accept the oral application unless the plaintiff advised by a memorandum to be filed by 5pm on 23 October 2012 that he required a written application. He did not file that memorandum. I directed that if he did not do so, the memorandum that he was to file by 5pm on 25 October 2012 could double as his notice of opposition to the oral application.

Discussion

[9] Although it is filed out of time, I will take the plaintiff’s “submission” sent this morning as his intended notice of opposition. As I have indicated already, the only conceivably new contention is an unsubstantiated allegation of fraud. I am conscious that the plaintiff is representing himself, but he has already received a very substantial amount of latitude in that respect. Plaintiffs acting for themselves must still use their best endeavors to comply with the High Court Rules, and must also comply with Court orders. The plaintiff has done neither in this case:

(a) He has purported to raise a matter of fraud, but has given no particulars as required by the Rules.

(b) He has delayed filing materials in support of the claim, and in particular has failed to meet Court imposed deadlines for filing a memorandum showing how his claim is supported.

(c) He has failed to comply with the direction to produce proof of his inability to attend the last conference (the hospitalisation of his daughter).

(d) He has failed to appear today, without advancing any reason for that.

[10] I take the view that the contention of fraud is too nebulous to allow it to stand without proper particulars. The plaintiff has had opportunity to provide them, and has failed to do so. Even if he is hoping to get some further material from the second and third defendants, he should only bring his claim against the first defendant if he already has adequate grounds for doing so. Those should have been pleaded. The fact that they have not, and cannot be until the second and third defendants are served (however that is going to help), indicates that there is currently no reasonable basis for the claims against the first defendant. Additionally, the pattern of this proceeding, echoed in part by the proceeding against the other bank, indicates that this proceeding is vexatious and an abuse of process.

Decision

[11] I make an order striking out the claim against the first defendant.

[12] I note that the proceeding has not yet been served on the second and third defendants. The claim against them is, similarly, poorly particularised, but I do not intend to give any directions in respect of it, other than to say that this proceeding will not continue until the plaintiff has proved service on the second and third defendants, and the time for filing a statement of defence has expired. If the second and third defendants file a defence, the Registrar is then to allocate a first case management conference for that aspect of the proceeding. If they do not, it will be over to the plaintiff to proceed by way of formal proof. I note in that respect that he will need to file and serve a fully particularised statement of claim against the second and third defendants before he is likely to succeed even on a formal proof basis.

[13] The first defendant seeks indemnity costs. It advised the plaintiff of this on 5

September 2012.[3] I consider in all the circumstances that an order is warranted. I make an order accordingly that the plaintiff pay the first defendant its reasonable solicitor/client costs for responding to the present proceeding. The first defendant is

_{to file and serve a memorandum within 10 working days setting out the costs being}

sought. The plaintiff is to file any memorandum in opposition within a further five working days. I will determine the quantum of costs on the basis of those

_memoranda.

Associate Judge Abbott

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[1] ANZ National Bank Ltd v Ronnie Chee Heng Fung (Aka Ronnie Fung) DC Manukau CIV 2010-092-

4447, 1 December 2011, appealed to this Court, but that appeal was also dismissed: Ronnie Chi Heng

_{Fung v ANZ National Bank Ltd [2012] NZHC 1278.}

[2] Court minute 18 October 2012.

[3] Email from first defendant’s solicitors to plaintiff dated 5 September 2012 at 2.26pm.