Carr v Ambler Homes Limited HC Auckland CIV-2009-404-000093

[2011] NZHC 750

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-000093

BETWEEN  ERROL CARR AND PATTI CARR Appellants

ANDAMBLER HOMES LIMITED Respondent

Hearing:         18 March 2011

Counsel:         R J Hooker for the Appellants

D M Law for the Respondent

Judgment:      29 June 2011

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 29 June 2011 at 2.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:   Vallant Hooker and Partners, PO Box 47088, Ponsonby, Auckland 1144 for the

Appellants

Wood Ruck Manukau, PO Box 76014, Manukau City, Manukau 2241 for the

Respondent

CARR and CARR v AMBLER HOMES LTD HC AK CIV-2009-404-000093 29 June 2011

[1]      The   applicant,  Ambler   Homes   Limited   (Ambler),   was   successful   in prosecuting  its  civil  claim  in  the  Manuaku  District  Court  in  contract  against Errol Carr  and  Patti  Carr  (the  Carrs)  and  in  defending  itself  against  the  Carrs’ counterclaim.    The  Carrs  appealed  to  this  Court  and,  on  1  December  2010,  I delivered a judgment in which  I allowed the Carrs’ appeal against the entry of judgment against them on the statement of claim, but I dismissed their appeal against the District Court’s dismissal of their counterclaim.

[2]      Ambler now seeks leave to appeal to the Court of Appeal against the part of my judgment which allowed the Carrs’ appeal in this Court.  The Carrs oppose the application.

The proposed questions

[3]      The proposed questions for which leave to appeal is sought are as follows:

(a)      Whether, in exercising its discretion whether or not to amend the statement of claim, the High Court is bound to take into account concessions by the appellants’ counsel in the lower Court regarding the nature of the case the appellants were answering;

(b)Whether such concessions by counsel for the appellants precludes the appellants from subsequently asserting they would suffer prejudice if the Court exercised its discretion to permit the statement of claim to be amended; and

(c)      Whether the Court was correct in concluding the amendment would not bring the pleading into line with both the real nature of the dispute and   what   was   actually   addressed   in   the   District   Court,   in circumstances  where  counsel  for  the  appellants  was  directed  to address variation of the building agreement in evidence and present argument on the same.

Background

[4]      Some understanding of the facts which led to the proceeding, as well as what occurred in this Court and in the District Court, is required to make sense of the proposed questions.

[5]      On 3 May 2002, Ambler entered into a written contract with the Carrs to build a residential dwelling for them at Whitford.  By May 2003, the dwelling was largely completed.  However, the Carrs considered there was work that was either still outstanding, or of such poor quality that it required remediation.  For this reason, the Carrs refused to pay Ambler the final instalment of the contract price.   On

8 December 2003, there was a meeting between Ambler and the Carrs.   At this meeting they discussed how the outstanding work would be completed and what its cost would be.  However, they never reached the stage where both sides could agree that there was no outstanding work, and what the final payment should be.

[6]      Ambler  then  commenced  a  claim  in  contract  against  the  Carrs  seeking payment of the contract price. The statement of claim alleged that

(a)      The meeting of 8 December 2003 had given rise to an oral contract under   which   Ambler   would   perform   certain   specified   work (paragraph 7 of the statement of claim);

(b)Ambler had performed its part of the contract (paragraph 9 of the statement of claim); and

(c)      The Carrs had failed to pay Ambler the sum of $19,323.75 that was due under the oral contract and were, therefore, in breach of the oral contract (paragraph 9 of the statement of claim).

[7]      Ambler first sought summary judgment on its claim.   The original written contract contained an arbitration clause and it precluded oral variations of its terms. This may be why Ambler decided to commence its proceeding against the Carrs by suing  on  a  discrete  oral  contract  which  was  alleged  to  have  arisen  from  the

discussion at the meeting of 8 December 2003.   Certainly there were terms in the original written contract which would have made it difficult for Ambler to obtain summary judgment.   However, as matters turned out, the summary judgment application was refused.  Ambler then sought to invoke the arbitration clause in the original contract, but the Carrs then argued that Ambler had already submitted to the Court’s   jurisdiction.      Ambler   then   continued   with   the   proceeding   in   the District Court.  For some unexplained reason, Ambler never amended its statement of claim to include express alternative claims based on entitlement to payment under the original written contract, or a variation of that contract.

[8]      In my judgment (at [38]-[54]), I found that the form of Ambler’s statement of

claim pleaded that a discrete oral contract arose from the meeting of 8 December

2003 and that Ambler had sought to sue for payment under the terms of that contract alone.   I then found, for the reasons given at [55]-[78] of the judgment, that the meeting of 8 December 2003 did not give rise to a separate oral contract.   These findings meant that Ambler’s claim failed.

[9]      Ambler now contends that in the District Court, the Carrs conceded that the statement of claim could be read as if Ambler was suing for payment under the original written contract as varied by discussions on 8 December 2003.   Ambler argues that the effect of the concession was something I should have taken into account; that the concession precludes the Carrs from asserting they would suffer prejudice if a late amendment to the statement of claim were still to be permitted; and that an amendment would enable the real nature of the dispute to be addressed by the Court.   These arguments are contained in the three proposed questions on which leave to appeal is sought.

[10]     In this way, Ambler seeks to negate the main plank of the Carrs’ defence and to establish that any amendment of its statement of claim was either not needed, or if done, it would simply tidy up the pleading and would not prejudice the Carrs. At the appeal, the Carrs argued that the form of the statement of claim restricted Ambler to a claim based on a discrete oral contract.  The Carrs maintained that no such contract ever existed and so Ambler’s claim should fail.  However, if in fact the Carrs had conceded in the District Court that Ambler’s case against them rested on either the

discussions of 8 December 2003 creating a discrete oral contract or a variation of the original written contract, this concession would obstruct their defence.   It could either render an amendment of the statement of claim unnecessary or preclude any complaint on the ground of prejudice if an amendment were sought to ensure the pleading reflected the case Ambler was running against the Carrs.

No factual basis supporting grounds on which leave to appeal is sought

The appeal hearing

[11]     The questions on which Ambler seeks leave to appeal are premised on a particular circumstance existing: namely, that in the District Court hearing, the Carrs’ counsel conceded that Ambler’s statement of claim permitted it to sue for payment by relying on a variation of the original contract.

[12]     However,  I  consider  that  there  is  no  factual  basis  to  support  Ambler’s argument.   Ambler’s case before me was not run on the basis that the Carrs had conceded that the statement of claim allowed Ambler to run a claim in contract based on the original written contract as varied by the discussions of 8 December 2003. Nowhere in Ambler’s submissions did it address the topic of a concession of this type being made in the District Court.  Instead, Ambler argued that the form of the statement of claim could be read as alleging an oral contract that effected a variation of the original written contract.  As an alternative argument, Ambler argued that the Carrs had acquiesced to the statement of claim being read in this way.

[13]     During the appeal I indicated that I had trouble seeing how the form of Ambler’s  pleading could  allow it  to  argue that  the Carrs  had  breached  an  oral variation of the original written agreement.   To me, the form of the statement of claim referred to the original written contract as part of the background, and then the statement of claim expressly alleged that the meeting on 8 December 2003 had created an oral contract that the Carrs had breached by failing to pay for the agreed work.

[14]     I saw a difference between suing on a new oral contract and suing on an alleged variation of the existing written contract.  The form of the statement of claim had some consequences for the Carrs because in the original written contract, there were terms which could be read as justifying them refusing to pay for the work they considered required remediation, whereas the alleged oral contract of 8 December

2003 omitted such terms.  Ambler’s claim was simply that at the 8 December 2003 meeting, the Carrs had agreed to pay a sum of money in return for certain work and that since this work was completed, Ambler was entitled to be paid for it.  Under the original written contract, there were terms which left room for  arguing that the performance of the agreed work on 8 December 2003 might not be enough to entitle Ambler to claim for payment.  In addition, the original written contract did not allow for oral variations, so that any argument that the original contract was varied by the meeting on 8 December 2003 had to overcome this obstacle.

[15]     In my judgment, I found that the deficiencies in Ambler’s statement of claim could not be cured by my permitting a late amendment to the statement of claim. My reasons for reaching this view are set out at [50]-[53] of the judgment.  In short, the view I reached was that the amendments Ambler sought went much further than simply bringing the statement of claim into line with what had actually been addressed in the District Court by way of evidence and legal argument.  I considered that the amendment would change the shape of the claim and that if this was done, the only way the Carrs could enjoy procedural fairness would be if they were then given the opportunity to re-shape their defence.  Unless this was done, I considered that the Carrs would suffer significant prejudice.  However, I decided that to allow the amendment which Ambler sought and to protect the Carrs’ right to procedural fairness would entail a complete re-hearing of the proceeding in the District Court.  I considered that it would be oppressive to the Carrs to allow that outcome.  In this regard, I considered that Ambler had to accept the consequences of the way in which it had chosen to plead its claim.

The District Court hearing

[16]     Nowhere in the District Court judgment, nor in the notes of evidence is there anything to suggest that the Carrs conceded that the statement of claim could be read

as Ambler contends.  First, no such concession was recorded.  Nowhere in either his judgment or in the recorded discussions with counsel (as set out in the notes of evidence)  does  the  District  Court  Judge  record  anything  that  can  be  read  as suggesting the Carrs made this concession.  My impression of the way in which the case developed in the District Court was that there was similar argument to what was run in the appeal: namely, Ambler sought to counter the Carrs’ arguments about the form of the statement of claim by contending that it could be read to support either a discrete oral contract or a variation of the original written contract.

[17]     Furthermore, Ambler’s conduct in the District Court was inconsistent with the Carrs having made such a concession.  Ambler in reply submissions, which were filed after the hearing, invited the District Court to amend the statement of claim of its own volition if it considered an amendment was necessary.   That Ambler considered it necessary to invite the District Court to amend the statement of claim (which is an odd step to take) is inconsistent with  any idea that the Carrs had conceded during the hearing that the statement of claim could be read as supporting claims either under a discrete oral contract, or under a variation of the original written contract.   If such a concession had been made, there would have been no need for Ambler to invite the District Court to amend the pleading of its own motion, if it thought this necessary.

[18]     The   concession   is   also   inconsistent   with   the   Carrs’  conduct   at   the District Court hearing.  The Carrs’ stance was that the form of the statement of claim did not allow room for a claim based on variation of the original written contract.

[19]     The Carrs dispute that anything they said or did in the District Court can amount to the alleged concession.  Indeed, their stance is that during the hearing in the District Court, their counsel asked Ambler if it was going apply to amend the statement of claim to include breach of an oral variation of the original written agreement.  In an earlier hearing, I permitted the Carrs to adduce evidence on appeal: see Carr v Ambler Homes (2009) 19 PRNZ 422.  Evidence was given by the Carrs’ junior counsel of an exchange she heard between leading counsel for the parties.  In the course of the exchange, counsel for the Carrs (Mr Hooker) said to Ambler’s counsel (Ms Law) that:

4.[H]e believed she needed to amend the plaintiffs’ pleadings because the current pleadings relied solely on an oral agreement when really any oral agreement was more properly a variation to the pre-existing written building agreement between the parties.

5.Ms Law replied that she was perfectly happy with her pleadings and said she did not believe they needed any amendment.

[20]     Thus, there is no doubt that during the hearing, Ambler was doing something which caused the Carrs to think it was straying outside the scope of its pleading.  But the Carrs’ stance is that absent a claim based on variation of the original written contract, they were entitled to confine their defence to arguing that there was no discrete oral contract, and that as this was all that Ambler was suing on, its claim should fail.

Hearing of the application for leave to appeal

[21]     During the hearing of the application for leave to appeal, I asked Ambler to identify for me the evidence it relied on to prove that the Carrs’ counsel had made the alleged concession.   Ambler could not identify any such express concession. Instead, Ambler argued that, by implication, the concession had been made.  Ambler directed me to the following material which it argues provides the necessary support for drawing this inference.

[22]     First, there is a memorandum which the Carrs filed on 7 December 2007 (before the defended hearing in the District Court commenced).  Ambler argues that the memorandum shows the Carrs approached the case as a building contract case involving the original contract.

[23]   The memorandum dealt with procedural issues such as timetables for exchanging briefs of evidence and identifying the issues for determination.  In this memorandum the Carrs do refer to the original building contract.   However, their defence was that it was the original building contract which determined their liability to Ambler.   It is, therefore, understandable that they would refer to the original building contract.

[24]     Ambler argues that having referred to the original building contract in the memorandum, the Carrs cannot now argue that they thought the case was about a stand-alone  oral  contract  and  that  they  were  surprised  by  Ambler’s  purported reliance on there having been a variation of the original written contract.  However, I have never understood the Carrs to make such an argument.  The fact their counsel asked Ambler if it would be amending its statement of claim shows to me that they were alive to a possible claim based on a variation of the original written contract. Their stance was that until the statement of claim was amended, they did not need to address what was no more than a potential claim.  This stance is consistent with the law  of  pleadings:  see  Bullen  &  Leake  and  Jacobs  Precedents  of  Pleadings Twelfth Edition (at 17).

[25]     I cannot see how the Carrs identifying in a pre-trial memorandum that the trial issues included the status of the oral agreement and the original written agreement can amount to a concession on their part that Ambler could sue relying on a variation to the original contract without first expressly pleading that this event had occurred.

[26]     The  next  event  Ambler  relies  upon,  to  support  its  argument  that  by implication the Carrs conceded that the statement of claim included a claim for payment under a variation of the original contract, is an exchange between counsel for the Carrs and the District Court.  The exchange is recorded at p 282 of the notes of evidence.  Counsel for the Carrs informed the District Court that the meeting of

8 December 2003 was relevant to the Judge’s assessment “as to whether there was a meeting of the minds on 8 December 2003 which had the effect of varying the earlier written agreement”.   Counsel then explained to the District Court the purpose of exploring emails with a witness, which was to see “whether the criteria to establish a variation of the building agreement were satisfied”.

[27]     I read the exchange between counsel for the Carrs and the District Court Judge at p 282 of the notes of evidence as counsel explaining to the District Court why he was asking a witness certain questions: namely, that from his clients’ perspective, there was no meeting of the minds on 8 December 2003 which had the effect  of  varying,  in  the  sense  of  altering,  the  Carrs’ rights  under  the  written

agreement.  This is consistent with the Carrs’ stance all along that their rights vis-à- vis Ambler were to  be found in  the original written agreement  and  not  in  any separate oral agreement that might have arisen from the meeting on 8 December

2003.  Their position was that there was nothing reached at that meeting which could amount to an enforceable contract that could have the effect of overriding their rights under the written agreement.  They were, therefore, entitled to question witnesses on what eventuated on 8 December 2003.   I do not see how this can amount to a concession on their part that the form of Ambler’s statement of claim allowed it to sue in reliance on a variation of the original contract.

[28]     At p 284 of the notes of evidence, the District Court Judge repeated the issues on which he wanted counsel to address him.  He said:

First the terms of the contract, second any variations by conduct or meetings or agreements between the parties at a later stage subsequent to that or after that under that heading, the meeting of 8 December and the terms of the agreement if any on that and then any outstanding issues residing from what was agreed on that issue and whether what was agreed on that was fixed or not fixed and thus issues outstanding as of the 18th  of December 2003 and then upon that decide on quantum ... Now I have got those and I believe in just letting you know where my mind is so that you can direct me if I’m wrong towards wherever.  I have tried that just now but obviously you have a different idea as to how the case or otherwise address me on that.  I leave it at that, its seven minutes after five.   What we’ll do is we’ll adjourn until tomorrow …

[29]     Counsel for the Carrs responded by saying:

Can I just assist Your Honour?  I think actually Your Honour and I are very much in the same part.   I have just a small qualification and one – and Your Honour identifies as being what are the terms of the contract and I say one of the terms of the contract is two parts; one of which says we will build this house to a good workmanlike standard.

[30]     Ambler submits that the response from the Carrs’ counsel that he and the District Court Judge are “very much in the same part” amounts to a concession by the Carrs that the statement of claim allowed Ambler to sue on a variation of the original written contract.   This statment is contrasted by Ambler with the Carrs’ notice of appeal in the High Court claiming that the District Court Judge was wrong to determine a variation of the contract without hearing from the defendants on the variation which was raised by the plaintiff for the first time in closing submissions.

[31]     My reading of this exchange between the District Court and counsel for the Carrs is that the District Court was setting out what it considered to be issues on which it wanted to be addressed.   One of those issues was whether there were variations to the contract.  It is not surprising that the District Court has identified this issue.  It fits with the evidence I allowed to be introduced in the appeal.  By this, I mean that something must have been said during the hearing by Ambler about a variation of the original contract; otherwise there would be no reason for counsel for the Carrs to have queried if Ambler was going to apply to amend its statement of claim.

[32]     When parties identify or acknowledge the issues to be raised and dealt with in a case, they necessarily identify and traverse issues raised by the opposing party, or by the Court.  But to acknowledge or to traverse what is in dispute is not the same as to concede that such issues are able to be disputed, or have any merit or relevance to the outcome of a defended hearing.   One party can acknowledge that there is a dispute regarding an issue raised by the opposing party but when addressing the issue argue that it falls outside the scope of the case, lacks merit or is irrelevant to the case.   Unless parties are free to act in this way, they will never be prepared to acknowledge or traverse any view of a case that is different from their own view.  I do not read this exchange between the District Court and counsel for the Carrs as indicating that  the Carrs  had  conceded  that  the  form  of the  statement  of claim allowed Ambler to sue on the original contract as varied by any discussions at the meeting on 8 December 2003. And in the absence of any such concession, I consider that the Carrs were free to adopt the stance they took in the appeal before this Court.

[33]     It follows that Ambler has been unable to point to any basis to support its assertion that, in the District Court, there was a concession from the Carrs which either made it unnecessary for Ambler to amend its statement of claim or removed any prejudice for the Carrs if leave to amend was sought.

[34]     In the course of hearing from counsel for Ambler on the leave application, I consider that Ambler, in essence, acknowledged that it cannot point to anything that would show the Carrs made the concession for which Ambler contends.  Ambler’s counsel acknowledged that if leave to appeal were granted, the Court of Appeal

would  probably  have  to  hear  additional  evidence  about  what  happened  in  the District Court  regarding  the  Carrs  making  the  alleged  concession.    Counsel  for Ambler said that she would have to retire as counsel as she would be providing such evidence in affidavit form.  She also accepted that her evidence would be disputed and that resolving whether to accept it or not would likely require her to be cross- examined.   She also submitted that the Court of Appeal might have to call for a report from the District Court Judge about what happened at the hearing.

[35]     I have already referred to the Carrs’ application to adduce fresh evidence at the appeal hearing.   Ambler opposed this application.   When the application was granted, Ambler had an opportunity to file evidence in response, including evidence from Ms Law about the alleged concession.  It did not file any evidence to establish that the Carrs had made this concession.   Given that the Carrs had filed evidence from their counsel querying if Ambler was going to apply to amend its statement of claim, I find it surprising that Ambler did not respond with evidence of the alleged concession.  Peter Ambler did swear an affidavit in which he referrred to Ms Law having had discussions with the District Court regarding amending the pleadings. Mr Ambler said that:

3.I recall  Ms  Law stating  that  she  believed  the  pleadings  did  not require amendment because the effect the later oral agreement had on the building agreement (ie to vary it) was evident, but in the event amendment was necessary, leave would be sought at the end of the hearing.

Consequently, Ambler did not take the earlier opportunity that was available to it to adduce evidence of the type which Ambler now concedes will need to be adduced before the Court of Appeal.  It is rare for evidence that was available at an earlier hearing to be permitted to be adduced at an appellate hearing.  It would be extremely rare before a second tier appellate court accepted such evidence, especially if such evidence could have been adduced at the first tier appeal; the evidence was disputed and the resolution of the dispute was likely to require cross-examination.  Regarding obtaining a report from the District Court, it is doubtful whether after this much time the District Court Judge would remember what had transpired at the hearing before him.  Ambler’s concession that all this information would be required for the Court of Appeal to determine the appeal suggests to me that Ambler realises that as matters

stand, there is no proper foundation to support the questions in its leave application. Furthermore, for Ambler to have any prospect of establishing this foundation, it will need to apply to the Court of Appeal for leave to take procedural steps that are rarely permitted.

Legal principles for grant of leave to appeal

[36]     Section 67 of the Judicature Act 1908 provides that a further appeal can be brought with leave.

[37]     The principles governing an application for leave to appeal to the Court of Appeal are well established.  This Court can only grant leave if there a question of law which is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision: see Waller v Hider [1998] 1 NZLR 412 (CA), and Snee v Snee (1999) 13 PRNZ 609 (CA).  At 614, the Court in Snee said:

To summarise, for leave to be granted pursuant to s 67, the appeal must raise some 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, both to the Court system and to the parties, and the delay involved in the further appeal.   Upon a second appeal this Court is not engaged in the general correction of error.   Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below.   It is not every alleged error of law that is of such  importance,  either  generally  or  to  the  parties,  as  to  justify  further pursuit of litigation which has already been twice considered and ruled upon by a Court.

[38]     The Court must first consider whether there is an identifiable question of law that is capable of serious and bona fide argument in a case involving some interest of sufficient importance to outweigh the cost and delay of a further appeal: see Waller v Hider at 413.

[39]     It is for Ambler to satisy the Court that leave to appeal should be granted.  If the Court has difficulty in identifying a clear and relevant question of law, leave to appeal should be declined: see Housing New Zealand v Waitakere City Council HC Auckland AP41/SW000,  19  October  2000,  which  was  upheld  by  the  Court  of

Appeal:  see  Housing  New  Zealand  v  Waitakere  City  Council  CA158/00,  14

December 2000.

[40]     The first step is to consider if the proposed questions of law or fact raised by the appeal must be capable of serious or bona fide argument.   I consider that this entails there being a proper evidential foundation to support such questions: see Perkowski v Wellington City Corporation [1959] NZLR 1 at 5. Without a proper foundation to support them, such questions are deemed to be hypothetical.

[41]     Here, for the reasons I have outlined, the foundation is lacking for questions one and two.   Regarding question three, I consider that there is no foundational support  for  this  question  and  so  it  is  also  not  capable  of  serious  or  bona  fide argument.  I have found that the Carrs did not concede that Ambler’s statement of claim could be read as allowing it to sue on a variation to the original written contract.  Without any such concession, I do not think the pleading could be read in this way.   Thus, the Carrs were not on notice when they went into the defended hearing that they would be facing an argument that Ambler was suing on a variation of the original written contract.  I do not understand the exchange between counsel for the Carrs and the District Court (see [29]-[30] herein) to amount to a direction that the Carrs were to treat the case as if Ambler was suing on a variation of the original contract.  Being directed by a court to address it on possible variation of the original contract by a new contract when the statement of claim does not plead variation of the original contract as the basis for suit is not the same as being directed to do so in a case where the basis for suit rests on a variation of the original contract. Once again, there is no foundation for the question on which leave to appeal is sought.

The reasons why I concluded that a late amendment to Ambler’s pleading would not bring the pleading into line with both the real nature of the dispute and what was actually addressed in the District Court are set out at [49]-[54] of the judgment. There is no nexus between the reasoning set out in these paragraphs and how the parties ran their respective cases in the District Court.   Nor is there any nexus between this reasoning and any directions the District Court Judge allegedly gave

regarding the topics on which the parties were to address him.   Until those connections are established, there is no foundation to support question three.

The interests at stake

[42]     Ambler argues that the thrust of its application for leave to appeal is that a litigant cannot be permitted to profit from resiling from concessions about the nature of the case made in the lower court.   In this sense, Ambler argues that its appeal engages public interests beyond Ambler’s private interest.  In principle, I agree that no litigant should be able to act in this way.  The difficulty Ambler faces is that it accepts it has no direct evidence of the Carrs making the concession for which Ambler contends.   Before a party can be bound by a concession, and a court be required to take it into account, there should be clear reliable evidence that a concession was made.   This is missing here.   Because the law generally does not permit a litigant to resile from concessions that have been freely made, there needs to be reliable and unequivocal evidence to establish them.

[43]     Ambler  contends  that  here  private  interest  considerations  are  substantial. Ambler says that apart from its claim for payment of just under $20,000, there is interest to be added to that, which brings the claim to $37,682. And when legal costs are included, Ambler contends that approximately $100,000 is at stake for it.  But this is a claim that is under $50,000.   It has already expended resources in the District Court and the High Court.   I see no reason for it to proceed any further. Ambler’s argument that its legal costs are in excess of the sum in dispute cannot assist its private interests to qualify for leave to appeal.  Rather the fact that so much has already been wasted in legal costs is a ground for calling halt to any further legal expense.

[44]     The core issue between the parties was whether the stage had been reached when building work that the Carrs regarded as still outstanding had in fact been properly performed and completed by Ambler.  The amount in dispute was just under

$20,000.  Had the matter gone to arbitration, as provided for in the original building contract, and an arbitrator experienced in residential construction disputes appointed the matter could have been resolved efficiently and cost effectively.  Instead, it has

taken up considerable Court time and the cost of doing so has grown expotentially as the matter has worked its way through the various stages of court hearings.  Any further appeal will simply add cost and further delay to resolving what is a simple issue that has no relevance to anyone other than the parties concerned.

[45]     The Court of Appeal has made it clear in Snee v Snee that for leave to be granted, the appeal must raise some 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, both to the Court system and to the parties, and the delay involved in a further appeal.   This case does not qualify under any of these heads.

Result

[46]     The application for leave to apply to the Court of Appeal is dismissed. [47]   The parties have leave to file memoranda on costs.

Duffy J