Deliu v Harborow - [2024] NZSC 94

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 41/2024
[2024] NZSC 94

BETWEEN	FRANCISC CATALIN DELIU Applicant
AND	MARK HARBOROW NICK FLANAGAN Respondents

Court:	Glazebrook, Ellen France and Kós JJ
Counsel:	Applicant in person N F Flanagan for respondents
Judgment:	5 August 2024

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.

BThe applicant must pay the respondents costs of $2,500.

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REASONS

Introduction

Mr Deliu seeks leave to appeal against a decision of the Court of Appeal that funds held in trust in the High Court in unrelated proceedings be released to the respondents to satisfy costs orders made against him.[1]

The grounds of appeal

[1]Harborow v Deliu [2024] NZCA 138 (Courtney, Venning and Dunningham JJ) [CA judgment], allowing an appeal from Deliu v Johnstone [2022] NZHC 467 (Harland J) [HC judgment].

Mr Deliu first submits that the replacement of Moore J by Venning J on the panel to hear the appeal did not follow the proper process under the Court of Appeal recusal guidelines and there is no evidence that the President of the Court of Appeal was involved as required by the gazetted procedure.
Mr Deliu’s next ground of appeal is that the Court of Appeal erred in its analysis of r 7.48 of the High Court Rules 2016. He also says that the Court of Appeal used the wrong standard of review of a discretionary decision. Finally, he says that there were non sequiturs in key passages of the Court of Appeal judgment.

Our assessment

With regard to the first ground of appeal, Mr Deliu accepts that Venning J was eligible to sit on the appeal under s 52 of the Senior Courts Act 2016. Mr Deliu has not suggested that any of the judges who did sit on his appeal had a conflict of interest, or were biased, or that there was any appearance of bias. We note too that Mr Deliu had objected to the presence of Moore J on the panel. In these circumstances, this ground of appeal does not have sufficient prospects of success to warrant leave being granted.
With regard to the other grounds of appeal, they arise on the particular facts of this case and raise no point of general or public importance.[2] In addition, nothing raised by Mr Deliu suggests that the Court of Appeal may have been wrong and there is thus no risk of a miscarriage of justice.[3] It is therefore not in the interests of justice to grant the application for leave.

Interlocutory matters

[2]Senior Courts Act 2016, s 74(2)(a).

[3]Section 74(2)(b). For the standard required in civil cases, see Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369 at [5].

Mr Deliu made an interlocutory application for a report into the appointment of the panel in the Court of Appeal, for an extension of the page limit for his leave submissions to 15 pages and for…

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 Deliu v Harborow

Details

AGLC: Deliu v Harborow [2024] NZSC 94
Case: [2024] NZSC 94
Decision Date: 5 August 2024

CaseChat Overview and Summary

The Supreme Court of New Zealand dismissed an application for leave to appeal made by Francisc Catalin Deliu against a decision of the Court of Appeal. The appeal related to a decision that funds held in trust in the High Court in unrelated proceedings be released to the respondents to satisfy costs orders made against Mr Deliu. The appeal was heard by Glazebrook, Ellen France, and Kós JJ. The application for leave to appeal was dismissed, and Mr Deliu was ordered to pay the respondents' costs of $2,500.

The grounds for the appeal were that the replacement of Moore J by Venning J on the panel to hear the appeal did not follow the proper process under the Court of Appeal recusal guidelines, and there is no evidence that the President of the Court of Appeal was involved as required by the gazetted procedure. Mr Deliu also argued that the Court of Appeal erred in its analysis of r 7.48 of the High Court Rules 2016 and used the wrong standard of review of a discretionary decision. He further contended that there were non sequiturs in key passages of the Court of Appeal judgment.

The court held that Mr Deliu's first ground of appeal did not have sufficient prospects of success to warrant leave being granted. The other grounds of appeal arose on the particular facts of this case and raised no point of general or public importance. There was no suggestion that the Court of Appeal may have been wrong, and there was no risk of a miscarriage of justice. It was therefore not in the interests of justice to grant the application for leave.

Orders