Chen v Auckland Weihao Investment Limited Incorporated

[2021] NZHC 3196

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001200

[2021] NZHC 3196

BETWEEN

LIYUN CHEN

Applicant

AND

AUCKLAND WEIHAO INVESTMENT LIMITED INCORPORATED

Respondent

Hearing:	On the papers
Appearances:	Applicant in Person
Judgment:	26 November 2021

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 26 November 2021 at 2.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Loo & Koo, Auckland Copy to:

L Chen, Auckland

CHEN v AUCKLAND WEIHAO INVESTMENT LTD INC [2021] NZHC 3196 [26 November 2021]

[1]                 On 15 September 2021, Ms Chen applied for a waiver of the $200 filing fee for an application to stay this proceeding and a costs order, pending her appeal to the Court of Appeal of my judgment dated 18 September 2020.1

[2]                 On 20 October 2021 the Deputy Registrar refused Ms Chen’s application for fee waiver. Ms Chen applies for a review of the Deputy Registrar’s decision.

Ms Chen’s application

[3]                 Ms Chen’s application was made under reg 18 of the High Court Fees Regulations 2013. Regulation 18(2) provides that the Registrar may waive a fee if satisfied of one of two grounds. The first is that the applicant is unable to pay the fee. The second is that the proceeding concerns a matter of genuine public interest, and the proceeding is unlikely to be  commenced  or  continued unless the  fee is waived.  Ms Chen’s application relied on the second of these grounds.

[4]                 Regulation 20(a) provides that, for the purposes of the regulations, one of the types of proceeding that qualifies as concerning a matter of genuine public interest is:

a proceeding that has been or is intended to be commenced to determine a question of law that is of significant interest to the public or to a substantial section of the public.

[5]                 The application form completed by Ms Chen asked her to explain why the proceeding is a matter of genuine public interest. Ms Chen’s response was to refer to all the documents filed in the proceeding. In answer to the question of whether the proceeding would clarify a question of law, Ms Chen stated that the questions of law are:

(a)whether s 10 of the Companies Act 1993 should be abolished;

(b)whether the Overseas Investment Act 2005 should be abolished; and

1      Chen v Auckland Weihao Investments Ltd [2020] NZHC 2450.

(c)whether cl 5 of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (the AML/CFT Act 2009), relating to customer due diligence, should be abolished.

The Deputy Registrar’s decision

[6]                  The Deputy Registrar recorded that the application did not meet the criteria, as it does not concern a matter of significant public interest, and the proposed question of law does not affect a significant section of the public.

Decision

[7]                  Ms Chen filed a memorandum dated 20 October 2021 in support of her application for review of the Deputy Registrar’s decision. Ms Chen states that the Registrar “used” the judgment of Campbell J dated 13 April 2021 as a reason to refuse the application for fee waiver. She states that since the date of that judgment, the Court of Appeal has accepted her application for leave to appeal, and new evidence has been filed in this Court under another proceeding.2

[8]                  Furthermore, she states that the matter is of genuine public interest because the respondent has not opposed her allegations of breaches of the Companies Act 1993, Overseas Investment Act 2005, and AML/CFT Act 2009. She also refers to the public interest in erroneous returns filed with the Companies Office by her accountant since 2016.

[9]                  I am not satisfied that the proceeding concerns a matter of genuine public interest. I will set out my reasons.

[10]              First, the questions of law outlined by Ms Chen in her application, being whether three separate pieces of legislation should be abolished, are not issues for determination in this proceeding. This proceeding involves an application by Ms Chen to sustain a caveat over a property she had agreed to purchase from the respondent. I dismissed Ms Chen’s application, because I found that she did not have an equitable interest capable of supporting the caveat. Ms Chen has appealed that decision. The

2      CIV-2020-404-1236.

question of whether the Companies Act 1993, Overseas Investment Act 2005, and AML/CFT Act 2009 should be abolished is irrelevant to my decision and will be irrelevant to the Court of Appeal when reviewing my decision. It may be helpful to explain that only Parliament can amend or repeal legislation. The courts cannot do that.

[11]              Second, whether the respondent was in breach of this legislation is not an issue in this proceeding either, and in any case is not “of significant interest to the public or to a substantial section of the public”. Similarly, the question of whether Ms Chen’s accountant filed erroneous returns with the Companies Office is not an issue in this proceeding or a matter of genuine public interest.

[12]              Third, the application which Ms Chen intends to file for which she seeks a fee waiver is for a stay of my judgment dismissing her application to sustain the caveat, and my order that she pay the respondent’s costs. So, the application does not actually concern the substance of the proceeding, but rather whether the orders lapsing the caveat and requiring Ms Chen to pay costs should be suspended pending the outcome of her appeal. Ms Chen has not explained how it is a matter of genuine public interest that she obtains such a stay.

[13]              There is a further issue with Ms Chen’s application for a fee waiver. Even if I had found that the proceeding concerned a matter of genuine public interest, Ms Chen has indicated on the application form that she would, if her application was declined, continue with the proceeding anyway. The Registrar is only able to waive the fee if satisfied that the proceeding concerns a matter of genuine public interest and is unlikely to be commenced or continued unless the fee is waived.

[14]              I therefore reach the same conclusion as the Deputy Registrar that Ms Chen’s application for a fee waiver should be declined.

Result

[15]              I decline Ms Chen’s application to review the Deputy Registrar’s decision declining her application for a waiver of fees.

Associate Judge Gardiner