Creser v Creser

[2014] NZCA 359

IN THE COURT OF APPEAL OF NEW ZEALAND

CA223/2014
[2014] NZCA 359

BETWEEN	RICHARD JOHN CRESER Applicant
AND	JANINE MICHELLE CRESER First Respondent
MARION NGAIRE CRESER Second Respondent

Hearing:	21 July 2014
Court:	Ellen France, French and Miller JJ
Counsel:	Applicant in person Appearance for Respondents excused
Judgment:	30 July 2014 at 10.00 am

JUDGMENT OF THE COURT

AThe application for leave to appeal to the Privy Council is declined.

BThere will be no order as to costs.

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REASONS OF THE COURT

(Given by French J)

1. Mr Creser seeks leave to appeal to the Privy Council against a 2003 decision of this Court.[1]

   [1]Creser v Creser CA193/03, 8 October 2003.  The hearing before us was confined to the question of jurisdiction in accordance with the following minute of this Court: Creser v Creser CA223/2014, 30 April 2014.

2. In the 2003 decision, this Court refused to grant Mr Creser special leave to appeal out of time against a costs decision made in the High Court.[2]

   [2]As at 2003, leave to appeal out of time to this Court was governed by r 5(1) of the Court of Appeal (Civil) Rules 1997.

3. It is well established following Grey v Elders Pastoral Holdings Ltd and Shardy v Circa Holdings Ltd that a refusal of leave to appeal to this Court cannot be appealed to the Privy Council.[3]

   [3]Grey v Elders Pastoral Holdings Ltd CA318/98, 20 September 1999; and Shardy v Circa Holdings Ltd CA250/98, 24 February 1999.

4. It follows that this Court does not have jurisdiction to grant Mr Creser’s application.

5. Mr Creser sought to overcome this difficulty in two ways.

6. First, he submitted that Grey and Shardy were no longer good law because they pre-dated the enactment of s 50 of the Supreme Court Act 2003.  However, s 50 is a transitional provision.  It preserves existing rights.  It does not create new rights of appeal to the Privy Council where none existed before.  Section 50 is therefore irrelevant for present purposes.

7. Secondly, Mr Creser submitted that his proposed appeal to the Privy Council would also include the $2,000 costs order made by this Court in the 2003 decision and therefore Grey and Shardy did not apply.  However, under r 2 of the Privy Council (Judicial Committee) Rules, there is no appeal as of right to the Privy Council unless the matter in dispute amounts to $5,000 or more.  That requirement cannot be circumvented as Mr Creser sought to do by adding the costs award made in the High Court to the costs award made in this Court.  They are two separate matters.

8. For completeness, we note that this Court has a discretion under r 2 to grant leave to appeal to the Privy Council notwithstanding that the matter in dispute is less than $5,000 if the question involved in the appeal is one which, by reason of its general or public importance, or otherwise, ought to be submitted to the Privy Council.  Clearly an appeal against a costs decision of $2,000 does not satisfy that threshold.

9. The application for leave to appeal to the Privy Council is declined.

10. None of the parties was represented by counsel and accordingly we make no order as to costs.