Fassler v Parry - [2012] NZCA 327

IN THE COURT OF APPEAL OF NEW ZEALAND

CA312/2012
[2012] NZCA 327

BETWEEN MARKUS FASSLER
Applicant

AND RUSSELL JAMES PARRY
Respondent

Hearing: 17 July 2012

Court: Glazebrook, White and Simon France JJ

Counsel: J H Waugh for Applicant
J S McHerron for Respondent

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…

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 Fassler v Parry

Details

AGLC: Fassler v Parry [2012] NZCA 327
Case: [2012] NZCA 327
Decision Date: 25 July 2012

CaseChat Overview and Summary

In Fassler v Parry, Markus Fassler, a beekeeper, sought to appeal a decision of the High Court which had overturned a District Court judgment in his favour. The original District Court judgment had found Russell Parry liable for conversion of Fassler's beehives, awarding Fassler $22,000 in damages. However, the High Court reversed this decision, holding that Fassler had not established the essential elements of the tort of conversion. The key issues before the Court of Appeal were whether the High Court's decision involved a question of law or fact capable of serious argument, and whether the appeal had sufficient importance to justify the costs and delays associated with further litigation.

The Court of Appeal found that there was no question of law or fact capable of serious argument. The Court accepted that the High Court judge had correctly applied the principles of the tort of conversion and had not erred in reviewing the District Court's findings. The Court also rejected arguments that Parry had conceded certain facts, finding that the pleadings were sufficient to put the matters in issue. Furthermore, the Court concluded that the appeal did not involve an interest of sufficient importance to justify the costs and delays of further litigation. Consequently, the application for leave to appeal was dismissed.

The Court ordered Fassler to pay Parry the costs of the appeal, which were to be assessed on a band A basis together with usual disbursements. The Court suggested that Fassler might have a claim for breach of contract but refrained from expressing a view on this matter due to potential issues of issue estoppel and limitation. The Court encouraged the parties to endeavour to reach a negotiated settlement given the amount at stake and the cost of further litigation.

Solicitors: Horsley Christie, Wanganui for Applicant
Quentin Stratford, Wanganui for Respondent

Orders