Ding v James

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA356/2021
[2022] NZCA 56

BETWEEN	CAOPING DING First Applicant BARRY BAI Second Applicant
AND	THOMAS EDMUND WILLIAM JAMES First Respondent KEATON PRONK, IAIN MCLENNAN AND MCDONALD VAGUE LIMITED Second Respondents

Court:	Brown and Courtney JJ
Counsel:	Applicants in Person B M K Pamatatau for First Respondent B L Martelli for Second Respondents
Judgment: (On the papers)	14 March 2022 at 3.00 pm

JUDGMENT OF THE COURT
(Recall)

The application for recall is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

In a judgment delivered on 3 November 2021, the Court declined an application for leave to appeal under s 56(5) of the Senior Courts Act 2016 from the refusal by the High Court[1] to add Ms Ding as a party to liquidation proceedings concerning NZSouthpole Team Ltd.[2]
[1]James v NZSouthpole Team Ltd (in liq) [2021] NZHC 657 at [61] and [104].
[2]Ding v James [2021] NZCA 578.
Ms Ding initially filed a document, dated 27 December 2021, entitled “Memorandum for applicants requesting correction of accidental slip”. A further expanded version dated 20 January 2022 was filed subsequently. The respondents’ memoranda in opposition treated Ms Ding’s memoranda at face value as applications under the slip rule. However, although the documents’ descriptions appeared to invoke the slip rule, in substance they sought a direction for a recall of the November judgment.
As the Supreme Court recently stated in S (SC39/2017) v R[3] the general rule is that a judgment, once delivered, must stand for better or worse, subject to appeal. A decision to recall will only be made in exceptional circumstances. It will be appropriate where some procedural or substantive error has occurred which would result in a miscarriage of justice.[4]
[3]S (SC39/2017) v R [2022] NZSC 7.
[4]At [3].
It is difficult to discern from Ms Ding’s ten-page memorandum of 20 January 2022 the precise basis upon which a recall of the judgment is sought. The document makes extensive criticisms of the liquidators and revisits the argument made below on the substantive interlocutory application that the interests of justice would be served by joining Ms Ding as a party to the liquidation proceedings.
However we are unable to identify any asserted error in the reasoning of our s 56(5) leave judgment, let alone one of such significance that it would warrant a recall direction.
Consequently the application for recall is dismissed. There is no order for costs.

Solicitors:
Alden Ho, Auckland for First Respondent
HC Legal Limited, Auckland for Second Respondents

CaseChat Overview and Summary

Ding and Bai sought leave to appeal against the High Court’s decision to not include Ding as a party to liquidation proceedings concerning NZSouthpole Team Ltd. The Court of Appeal had already dismissed Ding and Bai's application for leave to appeal, and the applicants sought to have the Court recall its judgment. The respondents opposed the application for recall, arguing that it did not meet the criteria for such a direction. The Court was required to determine whether the criteria for recalling the judgment were met.

The Court held that the applicants' memoranda, although styled as invoking the slip rule, in substance sought a direction for a recall of the judgment. The Court noted that a judgment, once delivered, must stand for better or worse, subject to appeal, and a decision to recall will only be made in exceptional circumstances where some procedural or substantive error has occurred which would result in a miscarriage of justice. The Court examined the applicants' ten-page memorandum and found that it did not identify any asserted error in the Court of Appeal's judgment that would warrant a recall direction. The applicants' criticisms of the liquidators and their arguments on the substantive interlocutory application did not meet the criteria for a recall.

The Court dismissed the application for recall, holding that there was no error in the judgment that would warrant a recall direction. The Court found that the applicants had not identified any asserted error in the Court of Appeal's judgment that would warrant a recall direction. The Court held that the general rule is that a judgment, once delivered, must stand for better or worse, subject to appeal, and a decision to recall will only be made in exceptional circumstances where some procedural or substantive error has occurred which would result in a miscarriage of justice. The Court found that the applicants had not met this standard. There was no order for costs.

This case highlights the importance of identifying any asserted error in a judgment that would warrant a recall direction. The Court held that the applicants had not met this standard and dismissed the application for recall. The Court also reinforced the general rule that a judgment, once delivered, must stand for better or worse, subject to appeal, and a decision to recall will only be made in exceptional circumstances where some procedural or substantive error has occurred which would result in a miscarriage of justice.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established