CSR Pokeno Limited v Yes Investment Limited
[2023] NZHC 598
•24 March 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
COMMERCIAL PANEL
CIV-2022-404-1410 [2023] NZHC 598
BETWEEN CSR POKENO LIMITED
Plaintiff
AND
YES INVESTMENT NZ LIMITED
First defendant
QING YE
Second defendantPOKENO WEST LIMITED
Third defendant
Hearing: 22 March 2023 Appearances:
JWA Johnson and C Jiang for plaintiff
L A O’Gorman KC and A Milosavljevic for first and second defendants
Date of judgment:
24 March 2023
JUDGMENT OF JAGOSE J
[Leave to appeal]
This judgment was delivered by me on 24 March 2023 at 10.00am.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
L A O’Gorman KC, Auckland JWA Johnson, Barrister, Auckland Tompkins Wake, Auckland
Couch Harlowe Kovacevich, Auckland
CSR POKENO LTD v YES INVESTMENT NZ LTD [2023] NZHC 598 [24 March 2023]
[1] The plaintiff (CSR) seeks leave to appeal my 16 September 2022 judgment, declining its application for interim relief and discharging then-present consent orders.1
Proposed appeal
[2] CSR wishes to argue on appeal I erred: in my apprehension of what constituted the status quo; by failing to consider if damages adequately would compensate CSR for contended non-monetary losses; in assessing abilities to meet any award for damages; and by inappropriately giving weight to the perceived relative strength of the parties’ cases at an early stage of the proceeding.2 It says determination is of general or public importance to obtain “clarity to the assessment criteria for interim injunctions” under those heads.
[3] The first and second defendants respond none of the contended errors truly is arguable and, even if arguable, without either public or private importance. Rather, CSR’s contentions remain for determination at trial. Diversionary appeal is undesirable.
Approach to applications for leave to appeal
[4] Section 56(3) of the Senior Courts Act 2016 prohibits appeals of orders or decisions on interlocutory applications in civil proceedings without this Court’s leave. The object of requiring such leave is:3
… to limit the cases which may go on appeal in the interests of finality of litigation and the work load of the [appellate] Court, while preserving the integrity of the law and the interests of justice.
[5] It is “well settled” the approach to leave is as a “filtering mechanism” for which “[t]he threshold is high”:4
1 CSR Pokeno Ltd v Yes Investment NZ Ltd [2022] NZHC 2378.
2 At [19]–[22].
3 Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.
4 Stockman v Health and Disability Commissioner [2022] NZCA 511 at [13], citing Greendrake v District Court of New Zealand [2020] NZCA 122 at [6] (citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13]); Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].
… leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.
It is “the appropriate test for all applications for leave to appeal interlocutory decisions, even where the issue on an interlocutory application may be dispositive of the underlying proceeding”.5 The question is if there is something justifying intermediate appeal.
Discussion
[6] The points CSR would ventilate on appeal all relate to my assessment of the balance of convenience. But the threshold for interim injunctive relief, of a serious question for trial, was crossed by CSR only in relation to the proper construction of the call option mechanism.6 And overall justice favoured no injunction.7 Neither is proposed to be disputed on appeal.
[7] It is not a promising start: the Court of Appeal was “not persuaded the correctness of the Judge’s assessment of where the balance lies meets the test for an interlocutory appeal”.8 That is because, as I said,9 the question of balance is “if refusing the injunction would be harder on a plaintiff who was successful at trial, than granting it would be on a successful defendant”, assessed by reference to the factors to be raised on CSR’s intended appeal. It is not to be argued I erred by, but in, referring to those factors. That another assessment of the qualifying status quo, adequacy of damages and capacity to meet it or substantive merit may be available does not undermine my overall determination injunctive relief should not be granted.
[8] In any event, I cannot identify any material benefit from appellate consideration of the balance for interim relief here. As the assigned Commercial Panel judge to deal with this proceeding, I am not asked to, nor presently would, defer any
5 Fugle v Vance [2023] NZCA 21 at [3].
6 CSR Pokeno Ltd v Yes Investment NZ Ltd, above n 1, at [14]–[17], citing Wellington International Airport Ltd v Air New Zealand Ltd HC Wellington CIV 2007-485-1756, 30 July 2008 at [4] (citing Cayne v Global Natural Resources Plc [1984] 1 All ER 225 (CA) at 237) .
7 At [23].
8 Manuka v Kennedy Point Boatharbour Ltd [2022] NZCA 482 at [20].
9 CSR Pokeno Ltd v Yes Investment NZ Ltd, above n 1, at [12].
aspect of its case management pending the appeal’s result. Given the necessity my assessment was predictive, to identify the parties’ relative hardships from consequences of trial, then so too is awaiting the land’s rezoning as relief at trial may include restoration of the plaintiff’s shareholding. Appellate consideration now may have no consequence for trial, except diverted resource and delayed determination.
[9] Accordingly, there is nothing justifying interlocutory appeal. If I am wrong in that, leave is available directly from the Court of Appeal.10
Result
[10] CSR’s application for leave to appeal my 16 September 2022 judgment is dismissed.
Costs
[11] In my preliminary view, from what I presently know — as the unsuccessful party in this averagely complex proceeding requiring counsel of average skill and experience, and in which a normal amount of time is considered reasonable for each step on the application — CSR should pay one set of 2B costs and disbursements jointly to the first and second defendants. I would allow for second counsel as part of the proceeding’s ‘average’ characterisation.
[12] If my view is not accepted by the parties, or they cannot otherwise agree, I reserve costs for determination on short memoranda each of no more than five pages
— annexing a single-page table setting out any contended allowable steps, time allocation and daily recovery rate — to be filed and served by the defendants within ten working days of the date of this judgment, with any response or reply to be filed within five working day intervals after service.
Next steps
[13] As indicated at the leave hearing, counsel are to liaise on a timetable ultimately leading to allocation of a fixture date, with reference to items 1–5 of Schedule 5 to the
10 Senior Courts Act 2016, s 56(5).
High Court Rules 2016. In particular, the parties should seek to articulate the issues for trial. I direct:
(a)CSR file (desirably jointly, but otherwise also to serve) its memorandum by Monday, 1 May 2023;
(b)any response or reply be filed within five working day intervals after service; and
(c)a case management conference be convened before me after mid-May 2023.
—Jagose J
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