Banks v Grey District Council - [2014] NZCA 470

IN THE COURT OF APPEAL OF NEW ZEALAND

CA460/2013
CA667/2013
[2014] NZCA 470

BETWEEN	DOUGLAS BANKS AND CHRISTINE SANDRA BANKS Appellants
AND	GREY DISTRICT COUNCIL Respondent

Court:

Wild, French and Miller JJ

Counsel:

Appellants in person
J Shackleton and D A Ward for Respondent

Judgment:

(On the papers)

26 September 2014 at 10.00 am

JUDGMENT OF THE COURT

AThe application for review of Stevens J’s directions is dismissed.
BThe appellants are granted leave to file a supplementary volume of the further evidence they seek to adduce that is not already included in the respondent’s case on appeal. The supplementary volume is not to contain submissions made in the High Court or any documents already on the files of this Court.
CThe application for leave to adduce the further evidence is adjourned until the substantive hearing.
DCosts on the two applications are reserved for determination as part of the hearing of the substantive appeal.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Mr and Mrs Banks filed two appeals. The first was an appeal against a decision of Fogarty J in which the Judge found that Mr and Mrs Banks were parties to a valid lease and accordingly liable for the payment of rent arrears.[1] The second appeal was against a subsequent decision of Fogarty J ordering Mr and Mrs Banks to pay costs.[2]
[1]Grey District Council v Banks [2013] NZHC 1485.
[2]Grey District Council v Banks [2013] NZHC 2304.
On 13 May 2014, Stevens J gave directions that the two appeals should be consolidated, a single hearing day should be allocated and the case on appeal for the consolidated appeal should be that filed by the respondent.
Mr and Mrs Banks, who are representing themselves, have applied under s 61A(3) of the Judicature Act 1908 for a review of those directions.[3]
[3]Having previously unsuccessfully sought leave to appeal the directions to the Supreme Court: Banks v Grey District Council [2014] NZSC 102.
Mr and Mrs Banks have also applied for leave to file further evidence.
Both applications are opposed.
The parties have, however, agreed that the applications may be dealt with on the papers.

Discussion

Mr and Mrs Banks do not challenge the decision to consolidate the appeals but consider that the consolidated appeal will require hearing time of at least one and a half days, not one day.
Having read the papers and made our own assessment, we disagree. One day is sufficient. The judges who hear the case will have read the parties’ written submissions in advance of the hearing. The purpose of the oral hearing is not for the parties to read out the submissions but rather to speak to them, to focus on the key points that are relevant and to clarify issues in response to questions from the panel. A disciplined approach is required and expected.
Mr and Mrs Banks also object strongly to the case on appeal being that filed by the respondent. They point out…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZCA 470
Decision Date: 26 September 2014 at 10.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard appeals from Douglas Banks and Christine Sandra Banks against the Grey District Council. The Banks sought to challenge the decision of Fogarty J, who had found that they were liable for the payment of rent arrears as they were parties to a valid lease. They also sought to challenge the costs order made by Fogarty J against them. The Court of Appeal, comprising Wild, French, and Miller JJ, was required to decide whether the directions issued by Stevens J for the consolidation of the two appeals, allocation of a single hearing day, and the case on appeal being that filed by the respondent, were appropriate and fair. The Court also needed to determine if the Banks should be granted leave to adduce further evidence in the form of affidavits, exhibits, and other documents.

The Court of Appeal held that the directions given by Stevens J were appropriate and did not unfairly prejudice the Banks. The judges agreed with the assessment that one day was sufficient for the consolidated appeal hearing, as the purpose of the oral hearing was to clarify issues in response to questions from the panel. Regarding the case on appeal, the Court found that the Banks' cases on appeal were non-compliant, and the respondent Council had filed a compliant case on appeal to assist the Court and the parties. The Court of Appeal confirmed that the case on appeal for the consolidated appeal would be the one filed by the respondent. However, the Court granted the Banks leave to file a supplementary volume containing the contested material that was not already included in the respondent's case on appeal. The admissibility and relevance of this additional material would be decided at the substantive hearing. Costs on the two applications were reserved for determination as part of the hearing of the substantive appeal.

The Court of Appeal dismissed the application for review of Stevens J's directions and granted the Banks leave to file a supplementary volume of the further evidence they sought to adduce that was not already included in the respondent's case on appeal. The supplementary volume was not to contain submissions made in the High Court or any documents already on the files of this Court. The application for leave to adduce the further evidence was adjourned until the substantive hearing. Costs on the two applications were reserved for determination as part of the hearing of the substantive appeal.

Orders