Davey v Cardinali - [2025] NZHC 1156

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2023-463-52

[2025] NZHC 1156

BETWEEN
HOWARD ADRIAN DAVEY

Plaintiff

AND

MYRA ANNE CARDINALI and ARLENE RENEE LU-ANA DAVEY-

DIESTERBECK as executors and trustees of the Estate of HOWARD ALBERT DAVEY First Defendants

MYRA ANNE CARDINALI and ARLENE RENEE LU-ANA DAVEY-

DIESTERBECK as executors and trustees of the Estate of KATHLEEN DAVEY

Second Defendants

ARLENE RENEE LU-ANA DAVEY- DIESTERBECK

Third Defendant

MYRA ANNE CARDINAI

Fourth Defendant

Hearing: On the papers

Appearances:

Plaintiff is self-represented

E R Anderson for the First and Second Defendants
D Cowan/J E G San Diego for the Third and Fourth Defendants

Judgment:

15 May 2025

JUDGMENT OF ASSOCIATE JUDGE CLIVE TAYLOR

[Application for leave to appeal]

This judgment was delivered by me on 15 May 2025 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

DAVEY v CARDINALI [2025] NZHC 1156 [15 May 2025]

Introduction

[1] On 29 October 2024 the Court delivered a judgment (the Judgment) in respect of the defendants’ application for security for costs and the plaintiff’s application for security for costs.1 The Judgment determined that:

(a)the defendants’ application for security for costs against the plaintiff was successful and the plaintiff was ordered to pay the amount of security within 28 days of the date of the Judgment;

(b)the plaintiff’s application for security for costs was declined.

[2] On 12 November 2024 the plaintiff filed an application for leave to appeal the Judgment. On 18 February 2025 the defendants filed a notice of opposition to the plaintiff’s application for leave to appeal.

[3]On 7 March 2025 the Court issued a minute making the following directions:

(a)the plaintiff was to file submissions in support of his application for leave to appeal by 28 March 2025;

(b)the first to fourth defendants were to file submissions in opposition to the plaintiff‘s application by 11 April 2025;

(c)the plaintiff’s application would then be dealt with on the papers.

[4] The plaintiff filed submissions in support of his application for leave to appeal on 1 April 2025, the first and second defendants filed submissions in opposition to the application on 11 April 2025, and the third and fourth defendants filed submissions on the same date, endorsing the submissions filed by the first and second defendants.

1 Davey v Cardinali [2024] NZHC 3029.

Legal Principles

[5] No appeal2 lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court or by the Court of Appeal following the High Court’s refusal of leave.3

[6] The relevant principles are set out in the decision of the Court of Appeal in Greendrake v District Court where the Court of Appeal identified the following considerations:4

(a)a high threshold exists;

(b)the applicant must identify an arguable error of law or fact;

(c)the alleged error should…

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 Davey v Cardinali

Details

AGLC: Davey v Cardinali [2025] NZHC 1156
Case: [2025] NZHC 1156
Decision Date: 15 May 2025

CaseChat Overview and Summary

In the High Court of New Zealand, the matter of Davey v Cardinali was heard on the papers. The plaintiff, Howard Adrian Davey, sought leave to appeal the court's judgment concerning an application for security for costs, which was previously dismissed by the court. The defendants, Myra Anne Cardinali and Arlene Renee Lu-ana Davey-Diesterbeck, opposed the plaintiff's application for leave to appeal. The court was required to decide whether the plaintiff's application for leave to appeal met the high threshold for granting such leave, considering the principles established in Greendrake v District Court and Finemore Upholstery Ltd v Vaughan.

The court considered the arguments presented by the plaintiff and the defendants. The plaintiff's grounds for leave to appeal primarily repeated arguments made throughout his claim, which had been struck out twice for non-compliance with court orders. The defendants submitted that the plaintiff had not identified any arguable error of law or fact in the judgment that could provide a genuine ground for the leave application. The court found that the plaintiff's application for leave to appeal did not meet the high threshold for granting leave as set out in the Greendrake decision, as there were no arguable errors in the judgment. Additionally, the plaintiff's grounds of appeal did not raise issues of general or public importance or were otherwise of sufficient importance to the plaintiff to outweigh the lack of any general or precedential value. The court concluded that the interests of justice did not warrant granting leave to appeal.

Accordingly, the court dismissed the plaintiff's application for leave to appeal. The court ordered that the plaintiff was to pay to the defendants costs on a 2B basis plus disbursements, in respect of their opposition to the plaintiff's application for leave to appeal.

Orders