Wu v The Queen

[2013] NZHC 892

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-2634 [2013] NZHC 892

IN THE MATTER OF     an application for relief against forfeiture pursuant to s 23 of the Crown Proceedings Act 1950

BETWEEN  DI WU Applicant

ANDTHE QUEEN Respondent

Hearing:         (On the papers) Counsel:  Applicant in person

M Harborow for Respondent

Judgment:      26 April 2013

JUDGMENT OF BREWER J

SOLICITORS

Meredith Connell (Auckland) for Respondent

(Copy to Applicant in person)

WU V R HC AK CIV-2012-404-2634 [26 April 2013]

[1]      On 21 September 2012, the applicant filed for relief against a final judgment pursuant to s 23 of the Crown Proceedings Act 1950.  This application is opposed by the Crown.

[2]      The application arises from a judgment I delivered on 1 December 2011 causing two recognisances in the total sum of $200,000 to be estreated.1   On 21 May

2012, the final judgment of the Court permitting the Crown to recover this sum was entered.

[3]      The Court has a jurisdiction once recognisances have been estreated, and final judgment entered, to grant the applicant relief if the equities favour relief.

[4]      The application was called before me on 18 October 2012.  At that time I

made a timetable direction. The timetable was extended on 19 December 2012.

[5]      On   19   February   2013,   there   was   a   further   telephone   conference. Mr Mansfield, counsel for the applicant, sought leave to withdraw.   I recorded the situation in my Minute as follows:

[2]      Mr Mansfield tells me that, as a result of an affidavit filed by the respondent immediately before Christmas, he finds himself in an untenable position.  His instructions have been that the bond money was provided by the applicant’s mother; losing the money would cause her significant hardship.  That is the basis upon which the application has been put forward. The respondent’s affidavit, however, casts significant doubt on the assertion that the bond money was provided by the mother.  It would now be open for the Court to conclude that the money came from Mr Wu, or some other person with whom he is closely associated.    Further, intercepted communications  record  Mr Wu  and  a  friend  discussing  advice  from Mr Mansfield as to the sort of documentation which would be needed to establish the mother’s claim to the money.  Mr Mansfield believes that he is now involved in the factual matrix.

[6]      I granted Mr Mansfield leave to withdraw.

[7]      Leave is now sought by the applicant to withdraw the application.2    In his filed  document,  the  applicant  makes  it  clear  that  he  has  received  the  relevant

1      R v Wu HC Auckland CRI-2006-019-8458, 1 December 2011.

2      Submissions of the Applicant – Withdrawal of the Application, filed on 26 April 2013.

documents, has had an interpreter explain to him their contents and has reviewed

“the whole situation”.

[8]      I am satisfied that leave should be granted.  Accordingly, the application is withdrawn and the proceeding is struck out.  The respondent is entitled to costs.  I note  that  the  applicant  is  a  prison  inmate.    If  costs  are  to  be  sought  then  a

memorandum as to quantum must be filed within 14 days of the date hereof.

Brewer J