YIIN & ANOR v NZ HOME BONDS LIMITED [2013] NZHC 1563

YIIN & ANOR v NZ HOME BONDS LIMITED [2013] NZHC 1563 [25 June 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2013-404-001529[2013] NZHC 1563BETWEEN ANN YIIN andEE LAUAppellantsAND NEW ZEALAND HOME BONDSLIMITEDRespondentHearing: 25 June 2013Appearances: Appellants in PersonC M Priest for the RespondentJudgment: 25 June 2013[ORAL] JUDGMENT OF WYLIE JCounsel:C M Priest, AucklandCopy to:A Yiin and E Lau, ManukauIntroduction[1] The applicants in this matter, Ms Yiin and Mr Lau, are mother and son. They have appealed a decision of Judge Harvey, given in the District Court at Auckland on 25 February 2013.[2] As I understand it, they were suing the defendant, New Zealand Home Bonds Limited, in respect of $73,000 which was paid to that company by their solicitor, Mr Singh, pursuant to an undertaking that he had given in that regard.[3] Judge Harvey found against Ms Yiin and Mr Lau. He was satisfied that a bond in favour of New Zealand Home Bonds Limited was still in place and held that Ms Yiin and Mr Lau had not made out their case against the company.[4] The appeal has been called before Ellis J in the civil appeals case management list. She issued a minute dated 28 May 2013, in which she noted that Mr Lau had indicated that he wished to apply to adduce fresh evidence on the hearing of the appeal. She put in place a timetable order to enable that to occur.[5] Ms Yiin and Mr Lau have filed a formal application to adduce fresh evidence, together with an application to stay enforcement of a costs order made by Judge Harvey in favour of New Zealand Home Bonds Limited. Mr Lau has filed an affidavit in support of both applications. It is dated 12 June 2013.[6] The applications are opposed by New Zealand Home Bonds Limited.The further evidence[7] I have heard today from Mr Lau, appearing on his own behalf. Ms Yiin has confirmed to me that she supports and adopts the submissions made by her son. I have also heard from Ms Priest, appearing on agency instructions for New Zealand Home Bonds Limited.[8] Inter alia, Judge Harvey found that an agreement to purchase apartments entered into by Ms Yiin and Mr Lau in a building at 113 Vincent Street in Aucklandhad not been cancelled. Ms Yiin and Mr Lau had endeavoured to persuade the Judge that the agreement had been cancelled by a Ms Lillie Zhong, who as I understand it, was the agent involved in completing the sale and purchase agreements between them and the vendor, Winsun Developments Limited. The Judge declined to acceptMr Lau's evidence in this regard.[9] Mr Lau has explained that the new evidence he wishes to adduce is contained in [2], [3], [4], [9], [10], [11] and [25] of his affidavit. He accepts that the balance of the affidavit is largely submissions, which do not necessarily rely on the fresh evidence.[10] In brief, the fresh evidence suggests that there were earlier transactionsbetween members of Mr Lau's family and Ms Zhong in the period 2002–2003. He says that members of his family purchased apartments in another project in which Ms Zhong was involved, known as Harbour Green Apartments, in Nielson Street in Auckland. He says that members of his family entered into unconditional agreements to purchase apartments in that building, but that Ms Zhong agreed that, if she could not arrange an 80 percent loan to enable the apartments to be purchased, and tenants who would give a 10 percent annual return on the purchase price, she would cancel the agreements. He says that Ms Zhong honoured that obligation in respect of the Harbour Green Apartments, and also further apartments which members of his family purchased around 2005-2006 in respect of units in a complex at 51 Pitt Street in Clendon and another building at 676 Mount Albert Road.[11] Essentially, Mr Lau and Ms Yiin wish to refer to this further evidence as being evidence of a consistent pattern of dealings between them and Ms Zhong. Mr Lau asserts that Ms Zhong's actions, and her cancellation of the agreement in thecase under appeal, is consistent with what she has done on earlier occasions.[12] The application to adduce further evidence is governed by r 20.16 of the High Court Rules. It provides that a party to an appeal may adduce further evidence only with the leave of the Court. Rule 20.16(3) provides that the Court may grantleave only if there are "special reasons" for hearing the evidence. An example of aspecial reason is that the evidence relates to matters that have arisen after the date ofthe decision appealed against, and that are or may be relevant to the determination of the appeal.[13] It is trite law that in general, an appeal proceeds on the evidence which was presented to the decision maker, and the parties do not have the opportunity to bolster their case with new evidence on appeal. Any new evidence must be cogent and likely to be material; further, it must generally be evidence that could not reasonably have been discovered at an earlier stage. The courts have disapproved of any notion that an appeal hearing should be regarded as a new trial, with theprevious hearing acting as a "dummy run".[14] When I asked him about these matters, Mr Lau accepted that the evidence was in existence as at the time of the hearing before Judge Harvey. As I understood it, he had disclosed the evidence to his solicitor, Mr Singh. At the hearing, he wasrepresented by Mr Singh's partner, a Mr Sharma. He does not know whether or notthe discussions he had with Mr Singh were relayed to Mr Sharma. Further, he said that he was not present after he gave evidence, and that he was not there to remind Mr Sharma of what he says had occurred in 2002 and 2003, and again in 2005 and 2006. Further, Mr Lau acknowledged that, at the time of the hearing before Judge Harvey, he did not consider that the evidence was "that important at the time".[15] I am not persuaded that it is appropriate to grant leave to adduce the further evidence. First, it is clear that the evidence was in existence at the time of the hearing before Judge Harvey. Secondly, I cannot see that there are any "special reasons" why the Court should grant leave to adduce the further evidence. If I wereto allow it to be called, the hearing would simply give Mr Lau the opportunity to try and bolster his case. Thirdly, there may well be difficulties with the evidence in any event. It is essentially propensity evidence and its relevance to the matters that were in issue before Judge Harvey is marginal. In part, it may well be hearsay. There could well be questions as to whether or not the evidence, if it were to come simply from Mr Lau, is cogent. There is no documentary material to back up his assertions. Were it to be admitted, there may well be the need for rebuttal evidence. Accordingly, I dismiss the application to adduce the further evidence.Application for a Stay[16] The application for a stay is governed by r 20.10 of the High Court Rules.[17] The bringing of an appeal does not operate to stay the effect of any judgment being appealed, and in the absence of an order from the Court, the successful party is entitled to enforce the judgment given.1[18] Here, costs have been entered in favour of New Zealand Home Bonds Limited in a total sum of $16,249.33. Ms Yiin and Mr Lau were entitled to set off the sum of $2,034, being costs awarded in their favour, following an unsuccessful appeal by New Zealand Home Bonds Limited against the dismissal of its application for summary judgment. The net sum therefore due from Ms Yiin and Mr Lau to New Zealand Home Bonds Limited is $14,215.03.[19] Mr Lau asserts that he and his mother simply do not have the funds to meet those costs. There is, however, no affidavit evidence in this regard. There is simply a memorandum filed by Mr Lau which has attached to it a photocopy of a statement from the Inland Revenue Department showing his child support statement of account. As at 2 June 2013, that statement of account shows an overall balance owing by Mr Lau to the Inland Revenue Department as $196,761.50. Also attachedto the memorandum is a copy of Ms Yiin's super card. Mr Lau put it to me that his mother is in receipt of a superannuation benefit, that their income is limited, and that they only have sufficient funds to survive on a day-by-day basis. He told me that he has lost everything, and that he has no ability to pay the costs outstanding to New Zealand Home Bonds Limited.[20] Ms Priest submitted that it is not necessary to order a stay, and that a failureto do so will not render Ms Yiin and Mr Lau's appeal rights nugatory. Further, shenoted that there is no evidence as such of Ms Yiin and Mr Lau's financial position,noting that there is no evidence of their income, or other assets.1 Philip Morris (New Zealand) Ltd v Liggett & Myers Tobacco Co (New Zealand) Ltd [1977] 2 NZLR 41 (CA).[21] I accept that there is no proper evidence before the Court of Ms Yiin's andMr Lau's financial position. The memorandum is simply a memorandum. It is not an affidavit. Moreover, the information attached to the memorandum is selective. It does not disclose their full financial position. I note that Mr Lau is representing himself and his mother. Refusal of a stay will not render his appeal rights nugatory. He will still be able to pursue the matter before this Court when it comes for hearing on 23 August 2013. In the circumstances, a stay is declined.Costs[22] New Zealand Home Bonds Limited is entitled to its reasonable costs and disbursements in relation to today's application. I fix those costs on a 2B basis.Ms Priest or her instructing solicitors are to file and serve a memorandum setting out the costs claimed within five working days of the date of this judgment. Ms Yiin and Mr Lau are to file and serve a memorandum if they disagree with the assessment of costs within a further 10 working days thereafter. I will then finalise the quantum of costs if there is disagreement between the parties.Addendum[23] Finally, I record that before the commencement of the hearing this afternoon, I advised counsel that I know one of the witnesses who gave evidence before Judge Harvey, a Mr Rudkin. I disclosed to counsel and to Ms Yiin and Mr Lau that while Mr Rudkin is not a close personal friend, I purchased a boat from him some two to three years ago. I asked the parties whether they took exception to me hearing the matter. Neither Ms Yiin, Mr Lau, nor Ms Priest objected to my involvement.[24] For my part, I did not see that there was any need for me to recuse myself._________________________Wylie J