DHC Assets Limited v Arnerich - [2021] NZHC 1703

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000975

[2021] NZHC 1703

BETWEEN
DHC ASSETS LIMITED

Plaintiff

AND

ANTONY IVO ARNERICH

Defendant

On the papers: 5 July 2021

Appearances:

F Thorp and L J Turner for the Plaintiff

J D McBride and A J Steel for the Defendant

Judgment:

8 July 2021

JUDGMENT OF ASSOCIATE JUDGE GARDINER

[application for leave to appeal and cross-appeal

This judgment was delivered by me on 8 July 2021 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Duthie Whyte, Auckland Doug Cowan, Auckland

F Thorp and L Turner, Auckland
J McBride and A J Steel, Auckland

DHC ASSETS LTD v ARNERICH [2021] NZHC 1703 [8 July 2021]

[1] Mr Arnerich applies for leave to appeal my decision of 25 February 2021 to dismiss his application to strike out the statement of claim and dismiss the proceeding.1

[2] DHC Assets Ltd applies for leave to cross-appeal in the event that I grant Mr Arnerich leave to appeal. Mr Arnerich opposes DHC’s application.

Background

[3]In my decision I found:

(a)DHC’s proceeding is not an abuse of process, because its application for relief under s 301 of the Companies Act 1993 in respect of the TRC claims is not res judicata;

(b)the statement of claim is not barred by the Limitation Act 2010.

[4] After I delivered my judgment, I ordered, by consent, that the proceeding was to be stayed pending delivery by the Court of Appeal of its judgment in CA555/209, or further order of the Court.

[5] The Court of Appeal delivered its judgment on 3 June 2021.2 As the Court of Appeal judgment potentially rendered the present proceeding moot, I enquired of counsel whether it was necessary to determine the applications to appeal and cross-appeal. DHC’s response was that unless the Court of Appeal judgment was appealed and overturned, further progress of this proceeding would be unnecessary. DHC proposed that the stay remain in place and determination of the applications for leave to appeal and cross-appeal wait until any appeal of the Court of Appeal judgment is determined. Mr Arnerich did not share that view, stating that a decision on his application for leave to appeal should still be made.

[6] Subsequently, on 29 June 2021, Mr Arnerich filed a notice of application for leave of the Supreme Court to appeal against the Court of Appeal decision.

1 DHC Assets Ltd v Arnerich [2021] NZHC 277.
2 Arnerich v DHC Assets Ltd [2021] NZCA 225.

[7] In view of the position of Mr Arnerich, and his application for leave to appeal the Court of Appeal’s judgment, I will proceed to determine the applications to appeal/ cross-appeal in this proceeding.

Grounds for appeal

[8] Mr Arnerich contends that the proposed grounds of appeal are capable of bona fide and serious argument, involve questions of general and precedential importance, if allowed would be dispositive of the case,…

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.

Keep reading for free

Create a free CaseChat account to read DHC Assets Limited v Arnerich and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NZHC 1703
Decision Date: 8 July 2021

CaseChat Overview and Summary

The case of DHC Assets Limited v Arnerich involves an application for leave to appeal and a cross-appeal in the High Court of New Zealand. Mr Arnerich seeks leave to appeal the Associate Judge's decision to dismiss his application to strike out the plaintiff's statement of claim and dismiss the proceeding. DHC Assets Limited, in turn, applies for leave to cross-appeal if the court grants Mr Arnerich's application for leave to appeal. The legal issues at hand concern the determination of whether the plaintiff's claim constitutes an abuse of process and whether the claim is barred by the Limitation Act 2010.

The court evaluates the requirements for leave to appeal, considering the arguments of both parties. Mr Arnerich contends that his grounds for appeal are capable of serious argument, involve questions of general importance, and have reasonable prospects of success. The court finds that the second ground of appeal, concerning the limitation of the plaintiff's claim, satisfies the requirements for leave, as it could be dispositive of the case. However, the court finds that the first ground of appeal, relating to the abuse of process, is less clear in terms of its general significance. Nevertheless, the court concludes that the decision may involve an arguable error of law and decides to grant leave for this ground as well.

Regarding the cross-appeal, the court determines that DHC Assets Limited's application for leave is timely and that the proposed cross-appeal is capable of serious argument and has general significance. The court finds that the issue of late knowledge under the Limitation Act 2010 is of sufficient importance to warrant a cross-appeal, especially considering the potential impact on the plaintiff's claims if the appeal were to succeed without the cross-appeal being heard. Therefore, the court grants leave to cross-appeal.

In summary, the court grants Mr Arnerich leave to appeal the decision in DHC Assets Limited v Arnerich and also grants DHC Assets Limited leave to cross-appeal that decision. The court's reasoning is based on the arguable errors of law identified in the applications for leave, the potential dispositive impact of the appeals, and the general significance of the legal issues involved.

Orders