Fassler v Parry
[2012] NZCA 327
•25 July 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA312/2012 [2012] NZCA 327 |
| BETWEEN MARKUS FASSLER |
| AND RUSSELL JAMES PARRY |
| Hearing: 17 July 2012 |
| Court: Glazebrook, White and Simon France JJ |
| Counsel: J H Waugh for Applicant |
| Judgment: 25 July 2012 at 3.30pm |
JUDGMENT OF THE COURT
A The application for leave to appeal is dismissed.
BThe applicant must pay the respondent costs for a standard application on a band A basis together with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by White J)
Mr Fassler, a bee keeper, successfully sued Mr Parry in the District Court at Wanganui for conversion of his beehives, which had been placed on Mr Parry’s land on the basis of a 50/50 profit sharing agreement.[1] Judgment was entered in the District Court against Mr Parry for $22,000.
[1] Fassler v Parry DC Wanganui CIV-2009-083-276, 15 March 2011.
Mr Parry successfully appealed to the High Court.[2] Clifford J held that the essential elements of the tort of conversion were not established, in particular:
(a)Mr Fassler did not have an immediate right to possession of the beehives in question;[3]
(b)it was doubtful whether Mr Parry’s actions demonstrated an intention to keep the beehives, especially as there was no clear evidence that Mr Fassler had in fact demanded the return of the beehives;[4] and
(c)Mr Parry’s actions did not give rise to the necessary degree of encroachment on Mr Fassler’s rights.[5]
[2] Parry v Fassler HC Wanganui CIV-2011-483-97, 4 November 2011.
[3] At [31].
[4] At [32]–[34].
[5] At [35].
The Judge also expressed the view that Mr Fassler faced these “fatal difficulties” because he had brought his action in conversion rather than in contract.[6] In order to encourage the parties to settle their dispute, the Judge indicated that he would have been unlikely to have awarded damages for breach of contract in any greater amount than that found by the District Court Judge.[7]
[6] At [36].
[7] At [38].
Having unsuccessfully sought leave from Clifford J to appeal to this Court,[8] Mr Fassler has now applied to this Court for leave to appeal.[9]
[8] Fassler v Parry [2012] NZHC 843.
[9] Judicature Act 1908, s 67.
In order to obtain leave to appeal, Mr Fassler must satisfy us that there is a question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.[10]
[10]Waller v Hider [1998] 1 NZLR 412 (CA) at 413; Snee v Snee [2000] NZFLR 120 (CA) at [15]–[22].
Notwithstanding Mr Waugh’s careful and comprehensive submissions on behalf of Mr Fassler, we are not satisfied that the grounds for granting leave to appeal are met in this case.
First, there is no question of law or fact capable of bona fide and serious argument:
(a)There was no suggestion that Clifford J had made any error of law in respect of the principles of the tort of conversion.[11]
(b)In accordance with the decision of the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar,[12] Clifford J was required to come to his own view on the merits of the appeal to the High Court. In doing so, he was entitled to examine the transcript of evidence and the documents that had been produced at the District Court trial to determine whether the elements of the tort of conversion had in fact been established. This was not a case where the District Court Judge had any particular advantage in assessing the witnesses when they gave their evidence as their credibility was not in issue. We therefore do not accept Mr Waugh’s submission that Clifford J erred in not deferring to the District Court Judge’s findings.
(c)The findings of fact made by Clifford J were open to him on the pleadings and the evidence. In particular, we do not accept that Mr Parry, who represented himself in the District Court, conceded either in his pleadings or his evidence that, notwithstanding the contractual arrangements between the parties, Mr Fassler had an immediate right to possession of the beehives. The pleadings were sufficient to put the matter in issue and, as Clifford J held, there was no evidence that the parties had acted in a way to bring the contractual arrangements to an end. The email evidence, which counsel took us to, did not establish any error on the part of Clifford J.
(d)No other question of law or fact was identified.
[11]Cuff v Broadlands Finance Ltd [1987] 2 NZLR 343 (CA) at 346; Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19, [2002] 2 AC 883 at [39] and [42]; and Glenmorgan Farm (in rec and liq) v New Zealand Bloodstock Leasing Ltd [2011] NZCA 672, [2012] 1 NZLR 555 (CA) at [25]–[30].
[12]Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
Second, the case does not involve any interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.
The application for leave to appeal is therefore dismissed.
Mr Fassler must pay Mr Parry costs for a standard application on a band A basis together with usual disbursements.
It may be that, as Clifford J suggested, Mr Fassler has a claim for breach of contract, but we express no view on that as questions of issue estoppel and limitation may arise.
In view of the amount at stake and the cost of further litigation, however, the parties are strongly encouraged to endeavour to reach a negotiated settlement.
Solicitors:
Horsley Christie, Wanganui for Applicant
Quentin Stratford, Wanganui for Respondent
3
0