YINGQIU ZHANG v WESTPAC NEW ZEALAND LIMITED [2020] NZSC 72

YINGQIU ZHANG v WESTPAC NEW ZEALAND LIMITED [2020] NZSC 72 [27 July 2020]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 37/2020[2020] NZSC 72BETWEEN YINGQIU ZHANGApplicantAND WESTPAC NEW ZEALAND LIMITEDRespondentCourt: Glazebrook, Ellen France and Williams JJCounsel: Applicant in personB J Upton and L B Harrison for RespondentJudgment: 27 July 2020JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The applicant must pay the respondent costs of $2,500.____________________________________________________________________REASONSIntroduction[1] On 25 September 2019, Ms Zhang was adjudicated bankrupt.1 On 9 October2019 she appealed to the Court of Appeal against that decision. She was advised bythe Court of Appeal Registry that security for costs had been set at $7,060. Anapplication for dispensation was declined by the Deputy Registrar on 13 December2019. Ms Zhang's application for review of the Deputy Registrar's decision wasdismissed by Brown J on 4 May 2020.2 She now seeks leave to appeal to this Court.1 Zhang v Westpac New Zealand Ltd [2019] NZHC 2422 (Associate Judge Paulsen).2 Zhang v Westpac New Zealand Ltd [2020] NZCA 138 (Brown J) [Review application].Further background[2] The bankruptcy proceeding arose because Ms Zhang defaulted on loans owedto the respondent (Westpac). After mortgagee sales, there remained a shortfall.Westpac obtained summary judgment for that shortfall and issued bankruptcyproceedings.[3] Ms Zhang's application for leave to appeal in relation to the summaryjudgment and for the suspension of the order of bankruptcy was dismissed by theHigh Court on 1 November 2019.3[4] An application to the Court of Appeal for a stay of the order for adjudicationwas declined on 20 December 2019.4[5] This Court, on 31 March 2020, dismissed Ms Zhang's application for leave toappeal that decision.5Decision of the Deputy Registrar on the dispensation application[6] The Deputy Registrar noted that, unlike most applications to dispense withsecurity for costs, Ms Zhang did not raise impecuniosity as a ground for dispensation.No information had been supplied or offered concerning her financial circumstancesor sources of funding.[7] So far as the merits of the appeal were concerned, the Deputy Registrar heldthat "security for costs would still be appropriate because the appeal is weak, involvesno substantive issue of public interest, and is not one that it seems a reasonable andsolvent litigant would pursue".3 Zhang v Westpac New Zealand Ltd [2019] NZHC 2797 (Associate Judge Paulsen).4 Zhang v Westpac New Zealand Ltd [2019] NZCA 682 (Kós P, Brown and Goddard JJ).5 Zhang v Westpac New Zealand Ltd [2020] NZSC 26 (Glazebrook and Ellen France JJ).Brown J's decision[8] On the review application dealt with by Brown J, impecuniosity was relied on.The Judge did not, however, consider that the additional information established thatMs Zhang was unable to pay security for costs.6[9] Ms Zhang also sought to raise a number of new arguments as to the merits ofthe appeal, all of which were rejected by Brown J.7 He also accepted Westpac'ssubmission that there was no public interest involved in the appeal.8 In conclusion,Brown J said:[21] In my view Ms Zhang's intended appeal against the order adjudicatingher bankrupt is not one which a reasonable and solvent litigant would pursue.I agree with the decision of the Deputy Registrar that it would not be right torequire Westpac to defend the judgment under appeal without the normalsecurity for costs. Consequently Ms Zhang has failed to demonstrate that thepresent case is one which falls within the category where security for costsshould properly be dispensed with.Our assessment[10] No issue of general or public importance arises.9 Both the Deputy Registrarand Brown J applied the principles applicable to dispensation from security for costsset out in this Court's decision in Reekie v Attorney-General.10 None of the groundsraised by Ms Zhang suggest that Brown J erred in reaching his conclusion that areasonable and solvent litigant would not pursue the appeal.Result[11] The application for leave to appeal is dismissed.[12] The applicant must pay the respondent costs of $2,500.Solicitors:Simpson Grierson, Auckland for Respondent6 Review application, above n 2, at [12]–[14].7 At [15]–18].8 At [20].9 Senior Courts Act 2016, s 74(2)(a).10 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [31] and [35].