Zhang v Telco Asset Management Limited

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA18/2020
[2020] NZCA 516

BETWEEN	YAN ZHANG Appellant
AND	TELCO ASSET MANAGEMENT LIMITED Respondent

CA150/2020
BETWEEN	YAN ZHANG Appellant
AND	TELCO ASSET MANAGEMENT LIMITED Respondent

Court:	Kós P and Courtney J
Counsel:	Appellant in Person T P Cleary for Respondent
Judgment: (On the papers)	21 October 2020 at 10.30 am

JUDGMENT OF THE COURT
[Recall]

The application for recall is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

In a decision delivered on 8 June 2020 this Court dismissed Mr Zhang’s application for leave to appeal a substantive decision of the Employment Court and the related costs decision.[1] In a separate decision delivered on 1 September 2020 the respondent, Telco Asset Management Limited, was awarded costs on the application.[2] Mr Zhang has applied to have the costs decision recalled (the Costs Decision).
[1]Zhang v Telco Asset Management Limited [2020] NZCA 223.
[2]Zhang v Telco Asset Management Limited [2020] NZCA 380.
The circumstances leading up to the delivery of the Costs Decision are as follows. Telco applied for costs in accordance with the Court of Appeal (Civil) Rules 2005. It calculated the costs at a total of $11,233. It did not seek any disbursements. Telco’s memorandum seeking costs was received by the Court on 15 June 2020. On 18 August 2020 the Registry forwarded the memorandum to Mr Zhang, asking for a response within 10 working days. Mr Zhang responded the following day by email, giving reasons that costs should not be paid. He did not indicate that he wished to file any further submissions.
On 28 August 2020 the Registry advised Mr Zhang that a decision on the costs application was to be delivered on 1 September 2020. The following exchange followed between Mr Zhang and the Registry:
(a)On 28 August 2020 Mr Zhang emailed the Registry saying “I will have a further response within 10 working days on next Monday, is that ok?”
(b)The Registry responded “A further response to what sorry?”
(c)Mr Zhang emailed “As to costs application from Telco, the deputy registrar emailed us on 18 August, said I have 10 working days for response, I have a further response due on next Monday.”
(d)The Registry replied “Your response received via email on 19 August 2020to the respondent’s memorandum seeking costs was referred to the Judge last week. I took that email as your response to the application.
Is there anything else you would like the Judge to consider?”
(e)Mr Zhang said “Yes, I have more information for the Judge to consider, my name is Yan Zhang, not “Jan Zhang” on the memorandum so that the memorandum from the respondent should be dismissed, as there is no appellant called Jan Zhang. And there is more information on Monday as I am still working on it.”
(f)The Registry responded “Because the matter on costs has already been heard on the papers by the Judges, you must seek leave to file any further submissions in respect of costs.”
Then, on 31 August 2020, Mr Zhang filed a one-page document entitled “The further response of opposing the costs memorandum from Telco” in which he made five points in support of his assertion that costs ought not be granted. The further response memorandum was not referred to the panel. The Costs Decision was released on 1 September 2020.
It is only in exceptional circumstances that a judgment of the Court will be recalled. The recognised categories in which that might happen are that (1) since the hearing a relevant statute of regulation has changed, or a relevant judicial decision of higher authority has been delivered; (2) counsel failed at the hearing to direct the Court to a legislative provision or an authoritative and plainly relevant decision or (3) for some other very special reason justice requires that the judgment be recalled.[3]
[3]Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2], citing Horowhenua County v Nash(No 2) [1968] NZLR 632 (SC) at 633.
In this case the only basis on which Mr Zhang could seek to have the judgment recalled is the third category, that there is some very special reason that justice requires the judgment to be recalled. However, justice does not require the recall of the judgment in this case. Mr Zhang was provided with the opportunity to respond to Telco’s memorandum seeking costs and he did so without any indication that he wanted to add anything to that response. Mr Zhang’s response was taken into account and explicitly considered in the Costs Decision.
The Registry correctly advised Mr Zhang that if he wished to make further submissions he would need leave to do so but Mr Zhang did not pursue that course.
We would note that, in any event, the points that Mr Zhang makes in his further memorandum could not possibly have altered the Court’s decision.
The application for recall is dismissed.

Solicitors:
Charles McGuinness Barrister and Solicitor Ltd, Wellington for Respondent

The Court of Appeal of New Zealand heard an application for recall brought by Yan Zhang against Telco Asset Management Limited. Zhang, acting in person, sought to have the Court recall its decision to award Telco costs following an unsuccessful appeal against an Employment Court decision. The appeal itself was dismissed by the Court on 8 June 2020, and Telco was awarded costs on 1 September 2020. Zhang's application for recall was dismissed by the Court on 21 October 2020.

The central legal issue before the Court was whether there were exceptional circumstances warranting the recall of the costs decision. Zhang argued that the costs decision should be recalled because his name was incorrectly stated as "Jan Zhang" in Telco's memorandum seeking costs, and that this error was a special reason justifying recall. Additionally, Zhang submitted a further memorandum with points opposing the costs, though this was not referred to the panel in delivering the costs decision.

The Court found that recall was only justified in exceptional circumstances, such as changes in relevant statutes or judicial decisions, or if justice required it for some other very special reason. Zhang's argument did not fit into any of these categories. The Court considered Zhang's initial response to Telco's memorandum and found that it had been taken into account in delivering the costs decision. The Registry had correctly informed Zhang that any further submissions would require leave, which Zhang did not seek. Moreover, Zhang's subsequent points could not have altered the Court's decision.

The Court concluded that justice did not require the recall of the costs decision. Zhang had been provided with the opportunity to respond to Telco's memorandum and had done so. The Registry's advice to Zhang that further submissions would require leave was accurate, and Zhang did not pursue this course. The application for recall was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established