LI v CHEN [2018] NZHC 2843

LI v CHEN [2018] NZHC 2843 [2 November 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-1177[2018] NZHC 2843IN THE MATTER of an appeal against a decision of the DistrictCourt dated 12 May 2017 in CIV-2015-090-848BETWEEN YONG MEI LI also known as SUSAN LIAppellantAND JIE PING CHEN also known as KELLYCHENRespondentHearing: 27 September 2018Appearances: N Tabb for AppellantS Keall for RespondentJudgment: 2 November 2018JUDGMENT OF GRICE J(Appeal from District Court)ContentsBackground [1]Grounds of appeal [5]Standard of appeal [7]Adducing further evidence [9]Credibility findings [18]Reversed onus and elements of the contract [22]"Partly written and partly oral" terms [35]Source of the cash [37]Briefs of evidence [46]Dates of advances [55]The way in which Ms Chen and Ms Li met [59]Ms Li's financial position [60]The reason for the loan to Ms Li [61]Writing on the bank slips [64]Overseas funds [67]Discovery obligations [70]Credit Contracts and Consumer Finance Act 2003 [75]Conclusion [79]Costs [83]Background[1] Ms Li appeals against the decision of the District Court in which she was foundliable to repay to Ms Chen advances totalling $58,880.1 Ms Li had admitted toreceiving that amount. She said it was by way of repayments of investment moneyshe had entrusted to Ms Chen. Ms Li said she was disappointed by the ultimate returnsand had pursued Ms Chen for repayment of the money. She claims it was theserepayments that Ms Chen had sued her for.[2] There was no formal written record of the loans. The written materialsurrounding the advances was patchy and the Judge found it to be unreliable. As theJudge put it, the respective versions of events by Ms Chen and Ms Li were"diametrically opposed".2[3] The claim by Ms Chen was originally for $71,480, together with interest at16 per cent. The Judge found that only the sum of $58,880, which Ms Li had admittedreceiving, was proved.[4] The case was originally scheduled for a two-day hearing in the District Court.It took three days. An interpreter assisted by interpreting the evidence of the parties.3Grounds of appeal[5] Ms Li appeals the District Court decision. The specific grounds of appealidentified in her notice of appeal were that the Judge incorrectly:(a) failed to make credibility findings on the key issue in the case, whichwas the nature of payments by Ms Chen to Ms Li.1 Chen v Li [2017] NZDC 9521.2 At [5].3 Cantonese was the first language of the parties.(b) applied the wrong onus of proof. Ms Li submits that the Judge placedthe onus on Ms Li to prove that there was a requirement that Ms Chenrepay Ms Li. Ms Tabb for Ms Li abandoned this ground at the hearing.However, she reframed this argument to allege the Judge incorrectlymade findings as to the terms of the loan as he merely found a principalsum was owing and awarded that sum without interest against Ms Li.(c) identified the contract as "partly written and partly oral".4 There wereno written lending repayment terms put in evidence.(d) found there was no evidence as to the source of the cash payments.There was evidence which the Judge failed to consider.(e) was unfair to Ms Li in hearing the matter despite the late filing of anunsigned brief of evidence by Ms Chen two weeks before the hearingand the signed brief of evidence only one working day before thehearing. The signed brief was different to the earlier unsigned brief,the statement of claim and amended statement of claim. Included inthe category of unfairness were allegations that Ms Chen failed tocomply with her discovery obligations. Ms Li's submission is that"[t]he Honourable Judge did not adequately consider the effect of thison the preparation of the appellant's case and the appellant's ability tochallenge the respondent's credibility".[6] Although not raised in her notice of appeal, nor indeed in the District Court,Ms Tabb for Ms Li also submitted that the Contracts and Consumer Finance Act 2003had an impact on this case. This argument was mounted for the first time insubmissions filed less than 24 hours prior to the hearing of this appeal. Ms Li saysthat there was no disclosure as required under that Act of the loan by Ms Chen toMs Li. Therefore, she says, the Judge should have realised this fact and declined toenforce the loan by refusing to enter judgment against Ms Li.4 Chen v Li, above n 1, at [1].Standard of appeal[7] The District Courts Act 1947 applies to these proceedings. An appeal to theHigh Court against the civil decision of the District Court is by way of general appealand can be in respect of any part of the decision.5 An appeal of this nature is by wayof rehearing.6[8] The applicable standard of appeal is thus that articulated by the Supreme Courtin Austin, Nichols & Co Inc v Stichting Lodestar.7 The appellate court has theresponsibility of arriving at its own assessment of the merits of the case, but theappellant bears the onus of satisfying the Court that it should differ from the decisionbelow. No deference is required beyond the customary caution appropriate when thetribunal had a particular advantage, such as technical expertise or the opportunity toassess the credibility of witnesses.8Adducing further evidence[9] Ms Li sought to adduce further evidence in the appeal. Leave of the Court isrequired for further evidence to be adduced on appeal.9 Leave may be granted only ifthere are special reasons for hearing the evidence, such as relevant matters arising afterthe date of the decision.10[10] The first application for leave to adduce evidence was related to a BNZ depositslip and a translation from Cantonese to English of the notation that was at the top ofthe slip. The translation was by Mr Henry Liu. His affidavit (unsworn) was attachedto Ms Li's supporting affidavit. Mr Keall for Ms Chen did not oppose the adducingof that evidence on appeal.[11] Mr Keall however opposed the evidence covered in the second affidavit filedtwo days before the appeal hearing. This was an affidavit by Mr Martel, a solicitor5 District Courts Act 1947, s 72.6 Section 75.7 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5] and[16].8 At [3] – [5], [13] and [21].9 High Court Rules 2016, r 20.16(2).10 Rule 20.16(4).who had apparently seen Ms Li and had given her some advice in relation to thetransactions with Ms Chen.[12] Ms Tabb argued that fairness and the interests of justice dictated thatMr Martel's affidavit should be introduced. She said it was relevant to Ms Chen'scredibility and the existence of an earlier investment.[13] There are a number of difficulties with Mr Martel's affidavit. The first is thatthe evidence is not fresh. It was available at the time of the hearing. There is no properexplanation as to why it was not adduced at the hearing in the District Court. Even ifMr Martel was not able to be present in court an application could have been made toadduce his evidence in another manner.[14] In any event, there are problems with his evidence. The primary evidence thatis sought to be adduced is what Ms Li said to Mr Martel. The statements fall to beassessed under the hearsay rules.11 There has been no opportunity for cross-examination or testing of the matters which Mr Martel avers to. In particular, hemakes some very general statements concerning the honesty of Ms Li.[15] The evidence is not fresh, it is untested, in part hearsay and not relevant to thecase on appeal. There are no special reasons for hearing the evidence.[16] Accordingly, I dismiss the application to adduce the evidence of Mr Martel.[17] There was no opposition to the evidence adduced in Ms Li's affidavit of July2018. In the circumstances, I allow it. However, I do not find it of any assistance inthe appeal for the reasons set out below.Credibility findings[18] The first major ground of appeal raised by Ms Li is that the Judge erred byfailing to make credibility findings where they were required.11 Evidence Act 2006, s 17.[19] Ms Li and Ms Chen's respective versions of events leading to the lending inthis case were entirely different. The Judge was required to make assessments ofcredibility and he did so. He preferred Ms Chen's version of events, which he foundwas corroborated by admissions by Ms Li that she had received $58,880 fromMs Chen. Once the proof of advances was made, it was up to Ms Li to show that theywere not loans. She did not satisfy the Judge of that.[20] The evidence took some three days, assisted by an interpreter. This is a casewhere the Judge was uniquely placed to make credibility findings. Caution should beexercised when seeking to depart from those findings. In this case there is no reasonto do so.[21] The Judge made no errors and had sufficient evidence before him to make thefindings that he did.Reversed onus and elements of the contract[22] The second ground of appeal raised by Ms Tabb for Ms Li was initially that theJudge erred by requiring Ms Li to satisfy him that there was no expectation that themoney would be repaid. It was her submission that the Judge had incorrectly reversedthe burden of proof. Ms Tabb abandoned this formulation of the argument before me,therefore I will not address that argument any further.[23] Ms Tabb did, however, reframe her argument. She said the Judge failed tosatisfy himself as to the necessary elements of the loan. He had simply found that asum of money had been advanced, and was therefore required to be repaid. He didnot properly address the terms of this alleged loan, such as interest or the requirementthat it be repaid.[24] The Judge was satisfied that Ms Chen had advanced to Ms Li a sum of money.Ms Li claimed the payments were simply repayments of earlier loans or investmentstotalling $65,000 she had paid to Ms Chen. The Judge noted that there was limitedevidence of earlier loans from Ms Li. On that basis, he found the affirmative defencewas not made out. This conclusion was not in error and was open to the Judge on theevidence before him.[25] The Judge weighed up the competing evidence and said:12[17] It is true that the physical evidence adduced by the plaintiff via banktransfers, banks statements and receipts is somewhat convoluted and,therefore, difficult to follow. However, having regard to the admission of thedefendant confirming the amounts paid to the extent of $58,880, it is inevitablefor me to find, on the balance of probabilities, that between 12 November 2012and 9 December 2012 various amounts, totalling that sum, were paid by theplaintiff and received by the defendant.[26] He found a portion of the amount claimed by Ms Chen to have been advancedto Ms Li was proved. The balance he said was not proved to the required standard.13[27] He applied the correct standard of proof and found the monies had beenadvanced. The payment of a sum of money from one person to another prima faciesuggests an obligation to repay it (with limited exceptions that do not apply here).14The defendant in the matter must then raise a plausible account of the circumstancesaround the payment sufficient to show that it was at least arguable that payment wasfor another purpose.[28] The Judge undertook this inquiry as follows:15[19] The question now remains as to whether payment of that sum was, infact, an advance by way of loan to the plaintiff or was repayment of earlierloans allegedly made to the plaintiff by the defendant in March/April and laterin December 2011. The defendant pleads the sums invested by her with theplaintiff has an affirmative defence. That being so, there is a burden of proofon the defendant.[29] The Judge the undertook a careful analysis of the claims by Ms Li. He was notsatisfied that a loan was made by Ms Li. Having examined the evidence he said, "Iam not persuaded that there is any merit in the defendant's affirmative defence"16[30] Finally, he concluded:1712 Chen v Li, above n 1, at [17].13 At [18].14 Seldon v Davidson [1968] 1WLR1083 (CA) as noted in Pram Enterprises Ltd (in liq) v Mansfield[2015] NZHC 230 at [37] – [39] and Jackson v Wynyard Group Ltd (in liq) [2018] NZHC 1283at [16].15 Chen v Li, above n 1, at [19].16 At [33].17 At [35].[35] I have already said that I am satisfied that the plaintiff has established,both through the paper trail and the ultimate acknowledgments by thedefendant, that she made a series of advances to the defendant totalling$58,880. Whereas she claims a further $12,600 by way of cash advances,there is insufficient evidence in my view to establish that part of her claim tothe required standard. If the parties are to carry on business using cash, then,inevitably, they will have difficulty in establishing a subsequent claim unlesssupported by adequate documentary evidence or independent evidence.[31] He was not satisfied that there was an agreement that interest be paid onMs Chen's advances. He said:18[7] Initially, the plaintiff sought interest on the $71,480 advanced at therate of 16%, alleging that such interest had been orally agreed. However, atthe hearing, no evidence was advanced in respect of the interest rate and,therefore, may be considered abandoned.[32] He noted the monies were to be repaid and had not been:19[13] According to the plaintiff, there was no attempt to repay the moneyduring the period that had been anticipated. When inquiries were made by theplaintiff as to non-payment, she was met by a variety of excuses.[33] Therefore, he was satisfied the advances were loans to Ms Li and wererepayable. This finding was available to him on the evidence.[34] It is clear that the Judge did not believe Ms Li and in particular rejected hercontention that the advances were repayments of previous investments. He wasentitled to reach that conclusion on the evidence before him."Partly written and partly oral" terms[35] The third ground of appeal was that the Judge referred to the terms of theagreement as being comprised of " partly written and partly oral lending andrepayment terms.".20 Ms Tabb argued there were no written terms either alleged orcovered in evidence, so this statement was in error.18 At [7].19 At [13].20 At [1].[36] The words of the Judge are taken from the wording from the statement of claim.The Judge simply notes that that is what the plaintiff is suing for. In any event, thisrecital is immaterial to the decision of the Judge. No error was made in this regard.Source of the cash[37] The fourth ground of appeal alleged by Ms Li related to the Judge's commentsthat "... Even if the advances were made in cash, one would have thought that therewould be some evidence as to the source of that cash.".21 Ms Li submits that therewas other evidence that the Judge failed to consider that showed the source of Ms Li'scash.[38] Ms Li said that the Judge had failed to consider evidence that she had fundsregularly transferred to her from China (as recorded in international money transferdocuments), Ms Chen's bank statements showed Ms Chen did not have availablefunds, and a BNZ bank slip with Cantonese character(s) that translated to "return" or"go back" which supported Ms Li's version of events that she had earlier lent moneyto Ms Chen.[39] The Judge was not required to specifically refer to every item of material putbefore him. The Judge expressly found that the evidence about the source of the cashfor the advances was not of assistance to him. He expressly noted that Ms Li "produced a limited number of transaction dockets and lodgement receipt forms fromASB and Western Union, which record amounts received by way of Chinese currencyor US dollars Bank statements were produced from BNZ showing a series ofwithdrawals at various times in 2011 ".22 It was his finding that this informationwas of little use to him in proving Ms Li made cash payments to Ms Chen prior to thealleged loan as the amounts and dates of the withdrawals from the bank did not matchMs Li's case.[40] Turning to the BNZ bank slip with the Cantonese characters, the interpreter atthe District Court hearing commented on the relevant character as follows:21 At [32].22 At [31]. it would be mean receive, or return, something like that. So like, becauseit can have so much different meaning and different context, for examplerecycling would also use that word in Chinese, so it would be just return –[41] Later he said:Sorry Your Honour, I have had a thorough thought of that word. I think I havethought of two word that might be more close to what it mean. It's retrieve orreclaim.[42] Mr Liu, in the report produced by Ms Li for the appeal, says he could notdefinitively state what the meaning of the character on the BNZ receipt was. Thereceipt was dated 7 December 2012 and recorded a deposit of $7,830 into theappellant's bank account.[43] Mr Liu said that at least one character was not legible enough for him to bedefinitive. He said: but the character as presented in the exhibit is not legible enough to bedefinitive. On its own, if it is a Chinese character, it could be a number ofcharacters. or any other characters with a square morphology but none ofwhich would render any meaning. Alternatively, it may not be a character atall [44] Mr Liu also said it could mean repaid. This supports the meaning attributedby the interpreter at the District Court hearings translation of "retrieve", "reclaim","return" or "receive".[45] The report of Mr Liu adds nothing to what was before the Judge. I am of theview that the Judge was not in error. He had the interpreter's comments, which are inline with Ms Li's contention as to the meaning of the character.Briefs of evidence[46] Ms Tabb for Ms Li says that Ms Li was prejudiced by a number of events. Themain one being that Ms Tabb only received the signed brief of evidence of Ms Chen,by email, on Sunday 26 March 2017 before the hearing due to start on Tuesday28 March 2017. Two weeks before that, she had received an unsigned brief ofevidence from Ms Chen which was different from the final signed brief she receivedon 26 March 2017.[47] Ms Tabb noted that the District Court proceedings were governed by theprocesses set down for simplified trials. Under r 10.5 of the District Court Rules 2014:(a) Affidavits of evidence and copies of documents are to be filed andserved at least 45 workings days before the simplified trial togetherwith any further documents on which the plaintiff intends to rely attrial.23(b) At least 30 working days before the simplified trial the defendant mustserve its affidavits of evidence in chief and copies of any furtherdocuments which it intends to rely on at trial.24[48] Those rules also apply to briefs of evidence.[49] Ms Li, through her counsel, filed a memorandum on 27 March 2017. In thatmemorandum counsel advised the Court:(a) Counsel had received a second/replacement/updated brief of evidenceat 7.22 pm on Sunday, 26 March 2017.(b) The brief of evidence was different to the unsigned brief previouslysupplied on 13 March 2017, noting this was served approximately twoweeks before the hearing.(c) Ms Li was unavailable and counsel was unable to discuss it with her.In addition, counsel needed the assistance of an interpreter to takeinstructions from Ms Li.(d) Ms Li had been disadvantaged by the filing of a brief less than 48 hoursbefore the hearing was due to commence. Counsel would "endeavourto take instructions tomorrow morning before court commences" and23 District Court Rules 2014, r 10.5(1).24 Rule 10.5(2).sought to deal with the issue "as a preliminary matter at 10 am beforethe hearing commences ".[50] Counsel for Ms Li did not seek an adjournment. There is no suggestion thatthe Judge put undue pressure on Ms Li to proceed nor was an application for anadjournment made at any stage. The strongest that Counsel puts it is that she wasencouraged to proceed by the Judge.[51] A perusal of the transcript indicates that there was extensive cross-examinationof Ms Chen by Ms Tabb. There was ample time for counsel for Ms Li to consider anydifferences between the earlier unsigned brief filed two weeks before hand and thatreceived on 26 March 2017 before the hearing. In addition, the Judge allowed a furtherday for hearing beyond the two days set down.[52] It would have been possible for Ms Li to apply for an adjournment and havethe application dealt with on the merits. In the circumstances having reviewed thepoints that are raised I doubt that the application would have been successful.Nevertheless, it was open to Ms Tabb to make the application. That was not done. Aperusal of the transcript reveals ample time was allowed for the case, Ms Chen wasextensively cross-examined and no unfairness to Ms Li is apparent.[53] I do not consider that the Judge acted unfairly nor that there is any evidence ofprejudice to Ms Li.[54] Ms Tabb took me through the differences that she felt were material betweenthe two briefs of evidence (unsigned and signed) that may have prejudiced her client.I now deal with he main issues raised.Dates of advances[55] Ms Tabb says the statement of claim and the unsigned brief (filed two weeksbefore the hearing) set out the dates of the advance Ms Chen to Ms Li as follows:8. Between 12 November 2012 and 9 December 2012, I gave Susanvarious sums, some by transfer, some in cash, totalling $71,480.00, asfollows:8.1 12 November 2012 - $10,000.008.2 12 November 2012 – $8,600.00.8.3 26 November 2012 – $10,000 (Into Susan Li's BNZ A/C, butno receipt) by way of transfer/cash exchange company – noremaining record of transfer).8.4 26 November 2012 – $8,600. (receipt attached)8.5 28 November 2012 – $9,400.00.8.6 5 December 2012 – $13,050.00.8.7 7 December 2012 – $7,830.00.8.8 9 December 2012 – $4,000.00. (in cash, no receipt or record)[56] However, the amended brief set out the above figures but also contained a listof figures said to represent the advances with interest incorporated. The new figuresare in the middle list headed "Money lent to her by me":Date Money lend to her by me Money collected by Susan Li12 Nov. 2012 $20,000 $18,60026 Nov. 2012 $20,000 $18,60028 Nov. 2012 $12,000 $,9,40005 Dec. 2012 $15,000 $13,05007 Dec. 2012 $9,000 $7,83009 Dec. 2012 $4,000 (cash) $4,000 (cash)Total ($80,000) ($71,480)[57] Ms Tabb says this new column of information suggests interest ranging from128 to 400 per cent was to be charged. She said this contradicted Ms Chen's claimthat the interest rate was 16 per cent.[58] Ms Tabb also cross-examined Ms Chen on the new column, high interest ratesand the inconsistency in Ms Chen's assertions as to interest.The way in which Ms Chen and Ms Li met[59] Ms Tabb submitted Ms Chen changed her story about how she and Ms Chenmet. In her subsequent brief of evidence, Ms Chen said they met by chance in a bankqueue, but in the statement of claim said that they met through mutual friends. Again,there was ample opportunity for the differences between the versions to be put toMs Chen in cross-examination.Ms Li's financial position[60] Ms Chen's evidence on how she saw Ms Li's financial position changed fromher statement of claim in which she pleaded she had minimal support from family toagreeing in cross-examination that her family had money and had sold two houses tosupport her. Again, Ms Tabb cross-examined Ms Chen on this point.The reason for the loan to Ms Li[61] Ms Chen in her unsworn brief of evidence said the loan was made to Ms Li forfees and rent. Later she said Ms Li wanted to give the money to her boyfriend. Inaddition, she said in her signed brief that she did not have a clue why Ms Chen wantedthe loan.[62] Ms Tabb also says that Ms Chen changed her story when giving evidencesaying she said she got a bank loan. Ms Tabb says there was no discovery ofdocuments related to the bank loan.[63] Ms Tabb cross-examined Ms Chen about that and received various responses.Writing on the bank slips[64] Ms Tabb said her client was disadvantaged because Ms Tabb was not given thechance of calling a hand writing expert from whom she had commissioned a reportabout handwriting on a bank deposit slip.[65] Ms Li's complaint here is the evidence from the handwriting expert was notneeded as Ms Chen conceded the point in dispute about the writing on the bank slips.Ms Chen was cross-examined on this concession.[66] There is no unfairness in the fact a witness was not required because the otherparty made a concession.Overseas funds[67] Ms Tabb points to some documents which show Ms Li received money fromoverseas shortly before she received money from Ms Chen. Therefore, the argumentgoes, she did not need a loan.[68] The material was before the Judge. He is not required to comment on everypiece of evidence put before him.[69] There is no unfairness under this head.Discovery obligations[70] Ms Tabb argues Ms Chen failed to comply with her discovery obligations.[71] While cross-examining Ms Chen, Ms Tabb became aware of the possibleexistence of certain documents not discovered because Ms Chen said for the first timethat she taken a bank loan to fund the advances to Ms Li. Ms Tabb says Ms Chenshould have discovered the loan documents. It was open to Ms Tabb seek time toconsider the documents when they were mentioned by Ms Chen. She had theopportunity to cross-examine Ms Chen on her failure to provide the documents earlier.In any event the Judge commented the source of the loan was not directly relevant.He said:25[15] During the course of the hearing the plaintiff was extensively cross-examined, somewhat meaninglessly in my view, as to the origin of the moneythat she had purportedly advanced to the defendant and to the means by whichthe funds on the various occasions were transferred to the defendant's accountor, in one instance, to the defendant's daughter's account. I say meaningless25 Chen v Li, above n 1.cross-examination as it was to be admitted in the defendant's brief of evidencethat she received the following amounts from the plaintiff:(a) 12 November 2012 $18,600(b) 28 November 2012 $9,400(c) 5 December 2012 $13,050(d) 7 December 2012 $7,8030And, subsequently in cross-examination:(e) 26 November 2012 $10,000[16] It is quite clear, therefore, that the defendant accepted, in advance ofthe hearing, that she had received $48,880 from the plaintiff at the end of 2012and, during the course of the hearing, this was uplifted to $58,880 [72] In my view the loan documents were of peripheral importance and in any eventnot directly related to the matters in issue.[73] Ms Tabb also points out that she had been asking the plaintiff for the originalof a bank receipt and it was only when the original was produced in court or shortlybefore hand that she was able to see Cantonese characters on the receipt. She said shehad been asking for that original for some time and it had not been forthcoming. Noapplication for inspection was made nor was the matter pursued at an interlocutorystage.[74] Ms Tabb could have taken steps to obtain the original. In any event, given theevidence concerning the Chinese notation to which I have referred the failure toprovide the original earlier made no material difference.Credit Contracts and Consumer Finance Act 2003[75] This additional ground of appeal was raised by Ms Li less than 24 hours beforethe appeal hearing. She said that the Judge wrongly entered judgment in favour ofMs Chen because there was no disclosure of the loan details as required under theCredit Contracts and Consumer Finance Act 2003.[76] This was not an issue that was before the District Court. It was not raised inMs Li's statement of defence or in the notice of appeal to this Court. The issue ofwhether the loan was governed by the Act was therefore never explored at the firstinstance.[77] Fresh evidence would likely be necessary as this matter raises issues of lawand fact that require evidence and argument. In Paper Reclaim Ltd the Supreme Courtcommented:26[15] There are strong policy reasons why the courts should take arestrictive approach to applications by parties to litigation who seek to alterthe basis of the case that they presented at trial, after judgment has been given.They reflect a strong societal interest in the final determination of concludedlitigation. This interest must be balanced against the individual interests ofparticular litigants who, having received an adverse judgment, consider thatthe approach they took at the trial of their dispute was based on an incorrectpremise and that a new approach is necessary to achieve the right result. Ithas been said that part of the societal interest lies in the risk that a liberalapproach would lead to temptation by dissatisfied litigants to commit perjury.Another consideration is the unfairness to a successful litigant in allowing theprotraction of proceedings by its opponent because its witnesses now say theirevidence was mistaken. To these ends courts are required to function withinprescribed limits framed to ensure there is an end to litigation.[16] These limits include limits to the scope of the parties' rights of appeal.The Supreme Court Act 2003 requires that appeals to this Court proceed byway of rehearing. Such an appeal does not contemplate a right to a newhearing of the evidence. The appellate court is required to determine issueswhich had to be determined in the proceeding of the court appealed from onthe basis of the evidence appearing in the lower court's record. This may besupplemented by adducing fresh evidence but only within establishedguidelines. It would ordinarily be outside the scope of the statutory directionto proceed by way of rehearing for this Court to allow a new case to be put upby a party to the appeal on which fresh evidence had to be called. The shortanswer accordingly, to the applications to add the proposed new ground ofappeal and to call fresh evidence to support it, is that they would take theappellate process outside of appropriate bounds.(footnotes omitted)[78] This new argument would require evidence and legal argument. Even if itgranted leave this Court would not be a position to consider it. I decline leave tointroduce this new ground of appeal.Conclusion[79] It will be apparent that none of the grounds of appeal have succeeded.26 Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZSC 1.[80] The grounds of appeal alleging the Judge wrongly failed to make credibilityfindings, consider all elements of the loan arrangement, consider the source of the cashand that the contract was not partly oral and partly written fail. The Judge made nomaterial errors.[81] I turn to the grounds relating to breach of natural justice and unfair process.Ms Li elected to proceed with the hearing, all matters raised by her as evidencingunfairness were dealt with at the hearing. There is no indication of any unfair pressurebrought to bear on Ms Li or her counsel. In addition, there are no issues relating toeither the late brief of evidence or discovery which would have materially affected thedecision. The Judge made no errors under this head.[82] As to the new ground of appeal relating to the Credit Contracts and ConsumerFinance Act 2003, the matter was not before the Judge. In any event there is noevidence before the Court to consider the issue. Leave is refused for the new groundof appeal to be brought out of time.Costs[83] Counsel each agreed that costs should follow the event, whatever the outcomeof the appeal and that they should be awarded on a 2B basis.[84] Pursuant to that agreement, I fix costs on a 2B basis to follow the event. Inview of the outcome the costs order is in favour of the respondent. Disbursements areto be fixed by the Registrar.[85] If there are any issues in relation to this order or any other matter relating tothis matter counsel may file submissions on or before seven days from the date of thisjudgment. Any response is to be filed within a further three days.______________________________Grice JSolicitors:N Tabb, Solicitor, North Harbour, AucklandS Keall, Solicitor, Auckland