XING v LI [2023] NZCA 382

XING v LI [2023] NZCA 382 [23 August 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA450/2022[2023] NZCA 382BETWEEN ZHONG XINGAppellantAND JICAI LI AND FANG YUFirst RespondentsYUN ZHENGSecond RespondentWEN CHENThird RespondentZHONG WEI ZHOUFourth RespondentBO LINFifth RespondentJIYUAN WUSixth RespondentFANG YUSeventh RespondentWMW TRUSTEE LIMITEDEighth RespondentYANGXUAN WANG AND MENGQUIWANGNinth RespondentsXIN ZHAOTenth RespondentZELIX TRADING LIMITEDEleventh RespondentQIN XIN ZENG AND AIXUAN GUOTwelfth RespondentsJCM NZ LIMITEDThirteenth RespondentYIKAI CHENFourteenth RespondentCHEN FENGLIANG AND MING DENGFifteenth RespondentsZHIREN ZHANGSixteenth RespondentLOVE HOMES LIMITEDSeventeenth RespondentER XIA CAO AND ER SHENG CAO (ASTRUSTEES OF ZION TRUST) AND ERSHENG CAO AND ER XIA CAO (ASTRUSTEES OF CAO TRUST) TOGETHERWITH JUN WUEighteenth RespondentsJASVINDER SINGH AND TINA SINGHNineteenth RespondentsGREEN LAND INVESTMENT LIMITEDTwentieth RespondentREGISTRAR-GENERAL OF LANDTwenty-First RespondentLEQUN ZHAOTwenty-Second RespondentXING ENTERPRISES LIMITEDTwenty-Third RespondentTRINITY HOPE INVESTMENT LIMITEDTwenty-Fourth RespondentFLATBUSH LAND LIMITEDTwenty-Fifth RespondentHIU CHING CHANTwenty-Sixth RespondentCourt: Brown and Goddard JJCounsel: Appellant in personR O Parmenter for First to Seventeenth and NineteenthRespondentsK H Morrison and T Y Yao for Eighteenth RespondentsM E Casey KC for Twenty-Sixth RespondentNo appearance for Twenty-Third, Twenty-Fourth andTwenty-Fifth RespondentsJudgment:(On the papers)23 August 2023 at 10.30 amJUDGMENT OF THE COURTThe application for a stay is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)[1] This judgment addresses an application by the appellant for a stay of his ownappeal.Background[2] On 1 September 2022 the appellant filed a notice of appeal againstthe High Court liability judgment Li v Green Land Investment Ltd.1 The appellant'sapplication for an order dispensing with the requirement to pay security for costs wasdeclined by the Deputy Registrar on 29 November 2022. An application for review ofthat decision was declined by Gilbert J on 14 February 2023.2 An application for leaveto appeal to the Supreme Court was dismissed on 19 June 2023.3 Security for costsremains unpaid.1 Li v Green Land Investment Ltd [2022] NZHC 1906.2 Zhong v Li [2023] NZCA 18.3 Xing v Li [2023] NZSC 68.[3] On 7 June 2023 Jagose J delivered a remedies judgment.4 The appellant hasfiled an appeal in that matter, CA312/2023. Security for costs set at $21,180 waspayable by 10 July 2023. It has not been paid, nor has an application for dispensationbeen filed.The stay application[4] On 7 July 2023 the appellant filed a memorandum seeking a stay of his appealuntil the "full determination" of an application to strike out the statement of claimdated 23 August 2021 in the High Court proceeding CIV-2021-404-1511. Annexed tothe stay application was a copy of an interlocutory application dated 7 July 2023 filedin the High Court seeking an order striking out the statement of claim inCIV-2021-404-1511.[5] On 25 July 2023 the first to seventeenth respondents and the nineteenthrespondents filed a memorandum in opposition on grounds including that thestrike-out application in the High Court had been dismissed. On 4 August 2023 theeighteenth respondents filed a memorandum in opposition on grounds which alsoincluded the dismissal of the strike-out application.[6] On 25 July 2023 Jagose J issued the following minute:Because I already have decided the plaintiffs' claim (which decisionsI understand Mr Xing both to have appealed and to have sought stayed),Mr Xing's 7 July 2023 application to strike out the plaintiffs' first cause ofaction plainly is an abuse of process: "improper use of [the court's]machinery" (Simon Goulding, DB Casson and William Blake Odgers Odgerson Civil Court Actions (24th ed, Sweet & Maxwell, London 1996) at [10.15],as cited in Commissioner of Inland Revenue v Chesterfields Preschools Ltd[2013] NZCA 53, [2013] 2 NZLR 679 at [87]); use of that process "for apurpose or in a way significantly different from its ordinary and proper use"(Attorney-General v Barker [2000] 1 FLR 759 (QBD) at 764). In the exerciseof my inherent jurisdiction to prevent abuses of process, and without requiringthe plaintiffs' opposition, I dismiss Mr Xing's 7 July 2023 application. Byanalogy with HCR 5.35B, because I have made that order on my own initiativewithout giving Mr Xing opportunity to be heard, he has the right to appealagainst my decision.4 Li v Green Land Investment Ltd [2023] NZHC 1399.[7] In these circumstances it is evident that the basis on which the appellant soughtan order staying his appeal has ceased to exist. Consequently his application for a stayis without merit and is declined.Solicitors:Carson Fox Bradley Ltd, Auckland for First to Seventeenth and Nineteenth RespondentsMeredith Connell, Auckland for Eighteenth RespondentsDuthie Whyte, Auckland for Twenty-Sixth Respondent