Chen v Lin [2015] NZHC 998 (12 May 2015)

Last Updated: 1 July 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000665 [2015] NZHC 998

BETWEEN	YANG CHEN Applicant
AND	JIN ZHU LIN Respondent

Hearing:	1 May 2015
Appearances:	Mr R Hesketh for Plaintiff/Applicant Mr Raju for Defendant/Respondent
Judgment:	12 May 2015

_{JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE}

This judgment was delivered by me on

12.05.15 at 4 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

CHEN v LIN [2015] NZHC 998 [12 May 2015]

[1] This judgment concerns an interlocutory application for orders correcting an accidental slip which was filed in the High Court 6 March 2015. The judgment in question is that which I entered on 23 July 2014. That judgment materially provided as follows:

(a) The courts in China had jurisdiction to make the orders that it did establishing that the respondent/defendant indebted to the applicant/plaintiff in the sum of RMB 20 million.

(b) The applicant/plaintiff is entitled to enforce those judgments in New Zealand. On that basis I enter judgment for the applicant/plaintiff in the sum of RMB 20 million.

[2] The judgment, the applicant says, omitted to include an additional sum of

RMB 8,567,202.23. This later amount is said to be attributable to interest.

[3] Even though the plaintiff’s lawyers were aware of what they thought was a mistake in the judgment, they sealed it on the basis that they would thereafter pursue the issue of the RMB 8,567,202.23 interest. However, in a later judgment that I issued, following a further application that they made for recall of judgment, I declined the application because the power to recall a judgment pursuant to r 11.9 of the High Court Rules (which was the rule under which the application was made) was only exercisable up to the point where the judgment is drawn up and sealed. Because the judgment had been drawn up and sealed, I declined to recall it under r 11.9.

[4] It was against this background that the plaintiff/applicant made the latest application pursuant to r 11.10, which, as the heading to the rule makes clear, is concerned with “correction of accidental slip or omission”.

[5] The slip or omission in this case was said to arise from the fact that the Court, in entering judgment omitted to, through error or mistake, enter judgment for the interest component of the judgment which the Chinese Court entered against the defendant.

[6] I accept that the Chinese Court did award to the plaintiff the amount of interest. However, I regret that I do not agree that the rule which the applicant relies on provides me with jurisdiction to make the order sought. The cases that have been decided on the effect of r 11.10 make it clear that the rule was not available for the purpose of making a substantial variation to the original judgment. The Judge is not entitled to use the rule to issue what is substantially a different judgment from that which was originally pronounced. This principle is to be found in cases such as R v

Cripps, ex p Muldoon¹ and Allan Scott Wines & Estates Holdings Limited v Lloyd.²

[7] In his submissions to me, Mr Hesketh, for the applicant, placed considerable reliance upon the decision of Tompkins J in Hanmore v Ganley (No 2).³ In that case, the Judge determined that the then equivalent rule to 11.10 could be invoked to award interest which had been claimed in the statement of claim but which was not awarded in the judgment by error. The Judge also considered that a claim for general damages which he had neglected to consider was capable of being

considered following recall of the judgment under the same rule.

[8] The judgment does not contain any statement of the principles which differ from those in the two leading authorities which I have referred to above. It represents the particular Judge’s exercise of his discretion in the circumstances and I do not consider that it requires me to take a different approach from that which is outlined in the two authorities to which I have referred.

[9] There can be no doubt that there was a mistake or error in this case, as I have indicated in the judgment that I issued on 15 December 2014. I do not, however, consider that is an error which is capable of being corrected under r 11.10. The plaintiff/applicant seeks variation of the judgment to include an order based upon a separate element of the Chinese Courts judgment, additional to what was included in the original judgment that I entered. This is not a case where the judgment that has been sealed can be corrected, on the basis that it does not correctly reflect the

_{substance of the judgment that I gave on the original summary judgment application.}

¹ _{R v Cripps, ex p Muldoon [1983] 3 All ER 72.}

² _{Allan Scott Wines & Estates Holdings Ltd v Lloyd [2006] NZHC 572; (2006) 18 PRNZ 199 (HC).}

³ Hanmore v Ganley (No 2) (1995) 9 PRNZ 25 (HC).

It is to correct errors of that kind that the jurisdiction is conferred by r 11.10. The application to amend the judgment is therefore dismissed.

_{[10] Costs on this application are reserved.}

J.P. Doogue

Associate Judge