Cathie v Simes - [2004] NZCA 217

IN THE COURT OF APPEAL OF NEW ZEALAND
CA121/04
BETWEENWILLIAM LLEWELYN CATHIE

Applicant

ANDALPHONSUS JOSEPH SIMES

Respondent

Hearing:16 August 2004

Coram:McGrath J
Hammond J
Chambers J
Appearances: J J Cleary for Applicant

B A Gibson for Respondent

Judgment:9 September 2004

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

Judgment against a dead man
[1]       In 2002, William Cathie succeeded in obtaining a judgment in the District Court against a man whom he knew to be dead. When the dead man’s executor found out about this, he applied for a rehearing. Mr Cathie opposed that application – successfully – on the basis that the executor was not a party to the proceeding. The executor appealed and won in the High Court. Mr Cathie now seeks leave under s 67 of the Judicature Act 1908 to appeal to this court on the grounds that the matter raised is of sufficient importance to warrant a second appeal.
[2]       Leave to appeal under s 67 is never granted unless there is “some question of law or fact capable of bona fide and serious argument”: Waller v Hider [1998] 1 NZLR 412 at 413 (CA). There are, of course, additional requirements, but it is fundamental that the question sought to be raised should be capable of bona fide and serious argument. The question in this case is whether it is possible to proceed to a hearing and to obtain judgment against a dead man. The proposition is so fundamentally flawed as not to be worthy of serious argument. For that reason, leave will be declined. The burden of this judgment is to show briefly why the argument advanced on Mr Cathie’s behalf is fundamentally flawed.
Procedural history
[3]       In order to understand the issue in this case, it is necessary to set out some of the procedural history. The account below does not purport to cover every step that occurred; it covers only steps necessary for an understanding as to how the parties have ended up in this court.
[4]       In 1992 Dr Zoltan Shardy started a proceeding in the District Court at Wellington claiming against Mr Cathie a declaration that there had never been a contract between them and damages under the Fair Trading Act 1986. Mr Cathie then counterclaimed for work done under a contract to repile a house owned by Dr Shardy. Mr Cathie contended that that contract had been wrongly repudiated by Dr Shardy.
[5]       There was some interlocutory skirmishing but the case had still not proceeded to a substantive hearing by the time, in April 2000, when Dr Shardy died. Dr Shardy’s death prompted Mr Cathie to take a new interest in the proceeding. In September 2000, Mr Cathie unilaterally sought a fixture. The District Court had mislaid the file and it was not until late 2001 that Judge Tuohy required an attendance in chambers by counsel for Mr Cathie. That counsel, Mr Cleary, who also appeared for Mr Cathie before us, duly attended. Judge Tuohy was concerned about Dr…

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.

Continue reading Cathie v Simes

Details

AGLC: Cathie v Simes [2004] NZCA 217
Case: [2004] NZCA 217
Decision Date: 9 September 2004

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from William Llewelyn Cathie against Alphonsus Joseph Simes, the executor of the estate of the deceased Dr Zoltan Shardy. The case centered around a District Court judgment obtained by Mr. Cathie against Dr. Shardy, who had passed away prior to the judgment being entered. The executor, Mr. Simes, sought to have the judgment set aside on the grounds that it was inappropriate to proceed against a deceased person. The District Court denied the application, leading to an appeal to the High Court, which was successful. Mr. Cathie now seeks leave to appeal to the Court of Appeal under section 67 of the Judicature Act 1908.

The central legal issue before the Court of Appeal was whether it is possible to proceed to a hearing and obtain a judgment against a deceased person. The Court found that the proposition itself was fundamentally flawed, as it contravened the principles of natural justice. The Court had to determine whether there was a question of law or fact that warranted a serious argument, as required under section 67 of the Judicature Act 1908. Given the fundamental flaw in the argument that a judgment could be obtained against a deceased person, the Court found that leave to appeal would not be granted.

The Court of Appeal dismissed Mr. Cathie's application for leave to appeal, affirming the High Court's decision that a court cannot enter a judgment against a deceased person. The Court held that if a plaintiff wishes to continue a proceeding against the estate of a deceased defendant, they must apply to have the deceased defendant's personal representative substituted as a party. The Court emphasised that both the District Court and High Court rules are discretionary in this regard, but if a plaintiff chooses to proceed against the deceased's estate, the court must ensure the personal representative is substituted as a party. The Court ordered Mr. Cathie to pay costs to Mr. Simes on the application in the sum of $3,000, together with disbursements, and directed the Registrar to fix the disbursements in the absence of agreement.

Orders