w w w . L a w y e r S e r v i c e s . i n



Liyun Chen v/s Auckland Weihao Investments Limited

    CA No. 688 of 2020

    Decided On, 19 March 2021

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE BROWN

    For the Applicant: In Person. For the Respondent: --------



Judgment Text

REASONS

Introduction

[1] Ms Chen filed an application under s 56(5) of the Senior Courts Act 2016 for leave to appeal against a judgment of the High Court declining two interlocutory applications.[1] On 22 December 2020 the Deputy Registrar declined Ms Chen’s application under reg 5(1) of the Court of Appeal Fee Regulations 2001 (the Fees Regulations) for a waiver of the $1,100 filing fee on the application. Ms Chen now seeks a review by a Judge of the Deputy Registrar’s decision.

Ms Chen’s application

[2] Ms Chen’s application for a fee waiver was made in reliance on the ground in reg 5(2)(b) that the proceeding concerned a matter of genuine public interest and was unlikely to be commenced or continued unless the fee was waived. Subclause (4) provides that a proceeding concerns a matter of genuine public interest if it is:

(a) 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; or

(b) a proceeding that—

(i) raises issues of significant interest to the public or to a substantial section of the public; and

(ii) is an appeal against a judgment, decree, or order given or made in a proceeding commenced by an organisation that, by its governing enactment, constitution, or rules, is expressly or by necessary implication required to promote matters in the public interest.

[3] Ms Chen’s fee waiver application specified the following question of law:

O - The respondent in breach AML/CFT 2009 and disposing property at lot 1, lot 2 285 Murphy’s Rd.

O - Respondent thru its accountant provide misleading information to company’s office that in breach section 10 Companies act 1993.

O - Please refer to R v Jiaxin Finance Ltd & Ors [2020] NZHC 366 as respondent in breach of AML/CFT 2009 and money laundering 8 million within 24 hours.

The Deputy Registrar’s decision

[4] The Deputy Registrar did not consider that the criteria in either reg 5(4)(a) or (b) were satisfied stating:

... The proceeding is an application for leave to appeal a decision of Hinton J, which declined your interlocutory applications for particular discovery and for an order setting aside the settlement notice. This decision turned on its specific facts, as will the appeal. The issues in the proceeding are whether an order for particular discovery should be made in the circumstances of this case, and whether a declaration that the settlement notice is invalid can and should be made.

Accordingly, I do not consider that the proceeding raises any question of law that will be of significant interest to the public or to a substantial section of the public. The issues you raise in your fee waiver application about money laundering and the respondent breaching the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 and the Companies Act 1993 are not questions of law that will be determined in this proceeding. This was explained in paragraph [20] of Hinton J’s decision.

The alternative criteria in reg 5(4)(b) are: that the proceeding raises issues of significant interest to the public or to a substantial section of the public; and that the proceeding is an appeal against a decision made in a proceeding commenced by an organisation that is required to promote matters in the public interest. Neither of these criteria is met. The issues raised in this proceeding are not of significant interest to the public or a substantial section of the public, for the reasons explained above in respect of the reg 5(4)(a) criteria. Further, your intended appeal is against a decision made in a proceeding commenced by you (your applications for discovery and to set aside the settlement notice), not by an organisation of the type described in reg 5(4)(b).

(Footnote omitted.)

[5] Because Ms Chen ticked the box in the application form which stated that she would start or continue with the proceeding even if the fee was not waived, the Deputy Registrar considered the second limb of reg 5(2)(b) was also not satisfied.

Discussion

[6] As has been held in relation to reviews of decisions concerning security for costs[2] the review function of a Judge in relation to a filing fee decision is to be exercised de novo.

[7] Ms Chen filed a detailed memorandum in support of her application for review. That memorandum focussed on that part of the Deputy Registrar’s decision declining a fee waiver on the ground in reg 5(4)(a). It did not engage with the Deputy Registrar’s conclusion in respect of reg 5(4)(b). Nor did it respond to the Deputy Registrar’s conclusion in reliance on reg 5(2)(b)(ii). Because the two limbs in reg 5(2)(b) are cumulative, the review must fail for the reason given by the Deputy Registrar at [5] above. However I proceed to address the challenge to the Deputy Registrar’s conclusion on reg 5(4)(a).

[8] The relevant contents of Ms Chen’s memorandum were identical to those in her memorandum addressed in my earlier decision, Chen v Auckland Weihao Investments Ltd.[3] As in that previous case, the difficulty which Ms Chen fails to confront is the requirement that the proceeding be or is intended to be commenced to determine the proposed question of law. As Hinton J explained in her judgment declining leave to appeal under s 56(3)[4] with reference to the first interlocutory application for particular discovery, whether Ms Chen is qualified to be a director of the defendant company is not at issue in the proceeding, nor is whether the defendant is in breach of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009.

[9] I reach the same conclusion as the Depu

Please Login To View The Full Judgment!

ty Registrar that the proposed appeal does not meet the genuine public interest criteria in reg 5(4) of the Fees Regulations. Result [10] The application to review the Deputy Registrar’s decision declining a fee waiver is declined. --------------------------------------------------------------------------------------- [1] Chen v Auckland Weihao Investments Ltd [2020] NZHC 2564. [2] Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [23]. [3] Chen v Auckland Weihao Investments Ltd [2021] NZCA 14. [4] Chen v Auckland Weihao Investments Ltd [2020] NZHC 2936 at [5].
O R