Fassler v Parry - [2012] NZHC 843

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CIV-2011-483-97 [2012] NZHC 843

BETWEEN MARKUS FASSLER Applicant

ANDRUSSELL JAMES PARRY Respondent

Hearing: On the papers

Counsel: J Waugh for the Applicant
H McDouall for the Respondent

Judgment: 30 April 2012

JUDGMENT OF CLIFFORD J

APPLICATION FOR LEAVE TO APPEAL TO THE COURT OF APPEAL

Introduction

[1] In my judgment of 4 November 2011 I allowed an appeal by the respondent, Mr Parry, against a decision of the District Court at Wanganui awarding the applicant, Mr Fassler, damages of $22,000 for the conversion by Mr Parry of beehives belonging to him, together with costs of $44,710.00.1 Mr Fassler now applies for leave to appeal my decision to the Court of Appeal pursuant to s 67 of the Judicature Act 1908.

Legal principles

[2] Where the High Court is not the Court of first instance, the Court of Appeal

may only hear a second appeal if leave is granted. The Court of Appeal’s decision in

Waller v Hider sets out the applicable principles.2 That is the appeal must raise some

1 Fassler v Parry DC Wanganui CIV-2009-0833-276, 15 March 2011.
2 Waller v Hider [1998] 1 NZLR 412 (CA) at 413; Snee v Snee [2000] NZFLR 120 at 125-126.

FASSLER V PARRY HC WANG CIV-2011-483-97 [30 April 2012]

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. When deciding whether to grant leave to appeal, the Court needs to be mindful that the Court of Appeal is not engaged in general error correction upon second appeal, but rather serves to clarify the law and determine whether it has been properly construed and applied in the High Court.

[3] Waller v Hider also confirmed that when the disputed matter is entirely or largely a question of fact, the task of the applicant under s 67 is harder. An issue of fact in a matter falling within the jurisdiction of an inferior Court will seldom be of public importance unless the amount at stake is very substantial or the decision reflects seriously on the conduct or character of the would-be appellant, or the judgment has special consequences (for example, bankruptcy) for the losing party.

[4] If the High Court refuses leave, an application for special leave may be made to the Court of Appeal.

Mr Fassler’s application

[5] For Mr Fassler, Mr Waugh submits that the appeal raises the following questions of law and fact that are capable of bona fide and serious argument:

(a) That I erred in fact and law in finding that Mr Fassler was required (and failed) to prove he had a right to immediate possession of his own property, as Mr Parry had accepted in his statement of defence and at trial in the District Court that Mr Fassler had an immediate right to possession. On that basis, that issue was neither raised in…

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] NZHC 843
Case: [2012] NZHC 843
Decision Date: 30 April 2012

CaseChat Overview and Summary

Fassler v Parry involved an application for leave to appeal a decision of the High Court of New Zealand, Wanganui Registry. The applicant, Mr Fassler, sought damages for the conversion of beehives by Mr Parry. The High Court had previously allowed an appeal by Mr Parry against a District Court decision awarding damages to Mr Fassler. Mr Fassler now applied for leave to appeal the High Court decision to the Court of Appeal. The legal issues were whether the appeal raised a question of law or fact capable of serious argument, whether the High Court erred in its findings, and whether the High Court considered matters not properly before it. The Court of Appeal must be satisfied that the appeal raises a question of law or fact of sufficient importance to warrant the costs and delay of a further appeal. The Court of Appeal's decision in Waller v Hider established the applicable principles. The Court found that Mr Fassler had not established that he should have leave to appeal. The application for leave to appeal was dismissed, but Mr Fassler could apply for special leave to the Court of Appeal. The Court drew attention to the recent discussion of the principles of the tort of conversion in Glenmorgan Farm Ltd (in receivership and in liquidation) v New Zealand Bloodstock Leasing Ltd.

Orders