Chesterfields Preschools Limited (in liquidation) v Sisson
[2017] NZHC 188
•17 February 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2016-409-000040 [2017] NZHC 188
BETWEEN CHESTERFIELDS PRESCHOOLS
LIMITED (IN LIQUIDATION) Plaintiff
AND
THERESE ANNE SISSON Defendant
COMMISSIONER OF INLAND REVENUE
Intervener
Hearing: 13-16 February 2017 Appearances:
B M Russell and K M Kendrick for Plaintiff
Defendant Appears In Person
S Kinsler, P J Shamy and S L Russell for IntervenerJudgment:
17 February 2017
JUDGMENT OF GENDALL J
On Application to Review 5 October 2016 Decision of Associate Judge Osborne
Introduction
[1] This proceeding was brought by the liquidators of Chesterfields Preschools Limited (In Liquidation) (the Company) for orders vesting in the liquidators a property at 854 Colombo Street (held by Ms Sisson as Trustee for the Company), and insurance proceeds following earthquake damage to the property.
[2] On 5 October 2016 Associate Judge Osborne in this Court delivered a judgment dismissing an application Ms Sisson had brought for particular discovery
relating to this proceeding.
CHESTERFIELDS PRESCHOOLS LIMITED (IN LIQUIDATION) v SISSON [2017] NZHC 188 [17 February
2017]
[3] Ms Sisson has sought to review that decision of Associate Judge Osborne. I heard that application for review on 13 February 2017. I now give my decision on the review application although, given that earlier yesterday, 16 February 2017, Ms Sisson consented to judgment being entered against her on this (and other) proceeding/s, and this has occurred, the present decision largely becomes otiose.
Review application
[4] Ms Sisson’s application for review is brought pursuant to s 26P(1) Judicature
Act 1908 which provides:
26P Review of, or appeals against, decisions of Associate Judges
(a) Any party to any proceedings who is affected by any order or decision made by an Associate Judge in Chambers may apply to the Court to review that order or decision and, where a party so applies in accordance with the High Court Rules, the Court –
(i) Must review the order or decision in accordance with the
High Court Rules; and
(ii) May make such order as may be just.
[5] As to the approach to review of an Associate Judge’s decision, McGechan on
Procedure at para HR2.3.02 notes:
(1) Overview
(a) If the Associate Judge’s decision is a reasoned one, following a defended hearing (ie full argument from opposing parties), the approach is essentially appellate (r
2.3(4)): Perriam v Wilkes [2014] NZHC 2192 at [4]. “Full argument” does not necessarily mean extensive argument —
the requirement for a defended hearing is met where the
hearing has afforded to all parties with a proper interest in the outcome an opportunity to say all that they reasonably
might say: Caringrace Inc v Claridge [2016] NZHC 1704 at
[36].
The starting point is the Associate Judge’s decision. The applicant has the burden of persuading the Court that the decision was wrong — that it rested on unsupportable findings of fact and/or applied wrong principles of law: Midland Metals Overseas Pte Ltd v Christchurch Press Co Ltd (2002) 16 PRNZ 107 (HC) at [13]; Poros v Bax [2015] NZHC 2772; Ophthalmological Society of New Zealand Inc v Commerce Commission [2003] 2 NZLR 145, (2003) 16 PRNZ 569 (CA). The Court will apply the
approach in Austin, Nichols & Co Inc v Stichting Lodestar
[2007] NZSC 103, [2008] 2 NZLR 141, (2007) 18 PRNZ
768 at [16], which involves the Court making its own assessment as to whether the original decision is wrong: Burmeister v O’Brien [2008] 3 NZLR 842, (2009) 9 NZBLC
102,415 (HC) at [29].
The Judge has the discretion to rehear all or part of the evidence and to hear further evidence (r 2.3(4)). The threshold for admission of new evidence is lower than on an appeal: Re McCullagh v Robt Jones Holdings Ltd [2016] NZHC 263 at [40] citing Peterson v Lucas Mill Pty Ltd [2012] NZHC 2398 at [26].
(b) If the Associate Judge’s decision involves exercising a discretion, for example a costs or a security for costs decision, the appellant must show the Associate Judge acted on a wrong principle or failed to take into account some relevant matter or took into account some irrelevant matter or was plainly wrong: Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [15]; Architecture & Project Management Ltd v Windowmakers Ltd [2015] NZHC 2268 at [28]; Jaques v Main [2016] NZHC 1978. This approach to discretionary decisions survives Austin, Nichols (above): Robinson v Whangarei Heads Enterprises Ltd [2013] NZHC 2247 at [7]. If no reasons are given for a discretionary decision, the Court will need to consider its exercise afresh: Commissioner of Inland Revenue v Boylan [2015] NZHC
2773, (2015) 27 NZTC 22-032 at [30].
(c) The High Court on review is not bound to defer to the decision of the Associate Judge, beyond the customary caution appropriate when seeing the witnesses provides an advantage because credibility is important: M Yovich & Sons Ltd v Peters [2016] NZHC 1572 at [8]. If the High Court Judge thinks the Associate Judge was wrong, the reviewing Judge should say so forthrightly: Teinangaro v Fastway Couriers (NZ) Ltd HC Napier CIV-2009-441-751, 25
November 2011 at [23](c), citing Austin, Nichols (above) at
[3] and [16].
My decision
[6] Clearly Ms Sisson, as applicant here, has the onus to persuade this Court that Associate Judge Osborne’s decision refusing particular discovery was wrong in the sense that it rested on unsupportable findings of fact and/or applied wrong principles of law. It is my clear view that she has failed to discharge this onus upon her.
[7] No reasonable basis was advanced by Ms Sisson before me to show that in any way Associate Judge Osborne was wrong in his decision refusing Ms Sisson’s particular discovery application. Associate Judge Osborne in his decision gave consideration to issues of relevance and proportionality which, in my view, was entirely proper, and he properly concluded, too, that Ms Sisson’s discovery application must necessarily fail on the pleadings.
[8] In this Court, both Associate Judge Matthews (in making an original tailored discovery order on 5 April 2016) and Nation J (in dismissing Ms Sisson’s application to review Associate Judge Matthews’ discovery decision) had referred, either directly or by implication, to the need to observe the objective in the High Court Rules “to secure the just, speedy, and inexpensive determination of any proceedings or interlocutory application”. The need to ensure relevance of all discoverable documents was emphasised by Associate Judge Matthews in this long running litigation. This proceeding CIV-2016-409-40 it was noted was confined to ownership issues and possible vesting of the Company’s property. Other matters outside the tailored discovery ordered by Associate Judge Matthews and confirmed by Nation J were seen as not relevant here and I agree. And there was no reasonable basis advanced for the very wide range of documents sought from the Commissioner by Ms Sisson relating to the 1994-2016 period, that did not relate to asset ownership issues and were therefore outside the scope of this proceeding.
[9] Associate Judge Osborne, as I see it, did not err in any way in his decision of
5 October 2016. There can be no possible conclusion here that the Associate Judge, in refusing the wide particular discovery sought here, acted on any wrong principle, or failed to take into account some relevant matters, or took into account irrelevant matters, or that his decision was in any respect wrong.
[10] For all these reasons now I dismiss Ms Sisson’s application to review Associate Judge Osborne’s particular discovery decision in this proceeding CIV-2016-409-40.
...................................................
Gendall J
Solicitors:
Lane Neave, Christchurch
Phillip Shamy, ChristchurchMeredith Connell, Christchurch
Copy to Ms Sisson
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