Butch Pet Foods Ltd v Mac Motors Ltd

[2018] NZHC 198

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-411

[2018] NZHC 198

BETWEEN

BUTCH PET FOODS LTD

Applicant

AND

MAC MOTORS LTD

Respondent

Hearing:

(On the papers)

Appearances:

P T Finnigan for Applicant

M Wilkinson, Director of Respondent

Judgment:

20 February 2018

JUDGMENT OF BREWER J

Solicitors:

Romaniuk & Associates (Auckland) for Applicant (Respondent in person)

BUTCH PET FOODS LTD v MAC MOTORS LTD [2018] NZHC 198 [20 February 2018]

[1]    Butch Pet Foods Ltd (“the applicant”) has applied for leave to appeal to the Court of Appeal that part of my Judgment1 rejecting the applicant’s primary ground of appeal to this Court. The notice of interlocutory application sets out the primary ground as:

Whether, in order to provide a fair hearing the primary Judge was required to:

1.provide adequate/cogent reasons to support the strong adverse credibility findings made against the witnesses, Barton and Wilcox; and

2.deal with the evidence of the witness Cress that the driver-abuse, would not cause adequately tightened flywheel bolts to loosen and unwind; and

3.grapple with contradictory fact and expert evidence and reason, coherently, why, one set of witnesses, of fact and expertise, should be preferred to the other.

[2]    The applicant also seeks leave to cross-appeal against the quantum of disbursements I allowed the respondent. I have given leave to the respondent to appeal the quantum (it thinks it should be higher) and the applicant wants the chance to argue it should be lower.

[3]The applicant also applies for leave to bring this appeal out of time.2

[4]    In my Judgment of 14 December 2017, in which I granted Mac Motors Ltd leave to appeal to the Court of Appeal on one ground, I reported the opposition by the applicant as:3

The opposition by Butch Pet Foods is on the basis that the proposed appeal does not raise any question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.

[5]    The applicant’s application is barred by the principles behind that argument. The proposed grounds of appeal do not raise any question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal. The

1      Butch Pet Foods Ltd v Mac Motors Ltd [2017] NZHC 2473.

2      High Court Rules, rr 1.19 and 20.22.

3      Butch Pet Foods Ltd v Mac Motors Ltd [2017] NZHC 3133, at [3].

applicant’s argument is that the first ground will guide further appeals where contradictory expert evidence and issues of credibility are involved. I disagree. The applicant simply seeks to go again into the evidence and attack the District Court Judge’s analysis of the evidence.

[6]    The applicant’s desire to pursue a further reduction of the award for disbursements cannot be justified by reference to the principles I have set out above. The question I allowed the respondent to take on appeal is:

In assessing the reasonableness of Mac Motors Ltd’s expert witness costs, should I have taken into account that it was not represented by counsel?

[7]    The applicant simply wants to argue that the orthodox calculation should have resulted in a lower amount.

[8]The application is dismissed.

Brewer J