Flintoft v Oneforest Limited - [2021] NZHC 2493

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2020-425-77

[2021] NZHC 2493

UNDER Senior Courts Act 2016 and Contract and Commercial Law Act 2017

BETWEEN

TOD BERNARD FLINTOFT and SARA JANE FLINTOFT

Applicants

AND

ONEFOREST LIMITED

Respondent

Hearing: 9 September 2021

Appearances:

L S B Acland for Applicants (via MS Teams)

B J Sanders and S F Lomaloma for Respondent (via MS Teams)

Judgment:

22 September 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

(in respect of application for leave to appeal)

[1] The applicants (the Flintofts) apply for leave to appeal my decision granting the application by OneForest Limited (OneForest) to stay this proceeding on the ground the parties had agreed to refer disputes to arbitration. The Flintofts’ mirror application to set aside OneForest’s protest to jurisdiction was dismissed as a result.1

Leave to appeal

[2] Leave is required to appeal to the Court of Appeal by virtue of s 56(3) of the Senior Courts Act 2016 (the Act).

1 Flintoft v OneForest Ltd [2021] NZHC 1906.

FLINTOFT v ONEFOREST LIMITED [2021] NZHC 2493 [22 September 2021]

[3] The requirement for leave to appeal is intended to serve as a “filtering mechanism” to ensure that unmeritorious appeals of interlocutory orders do not unnecessarily delay the proceeding. Ultimately, I am obliged to stand back and assess in a pragmatic and realistic way whether the interests of justice are served by granting leave.2

[4] Dobson J in A v Minister of Internal Affairs, identified (in obiter) the following considerations as relevant to any such application:3

(a)A high threshold exists for the granting of leave. An allegation of error of law or fact is generally insufficient. An application should raise an arguable error.

(b)Leave should only be granted if the circumstances warrant incurring further delay.

(c)The alleged error should be of general or public importance that requires determination, or otherwise be of sufficient importance to the applicant to outweigh the lack of any general or precedential importance.

[5] An application for leave to appeal an interlocutory decision is likely to be granted if:4

(a)the appeal is not likely to be overtaken by the substantive hearing or cannot otherwise be considered as effectively in the context of an appeal in the substantive decision; or

(b)the appellant is likely to be prejudiced by a postponement to the substantive appeal; or

2      Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13]-[14].
3      A v Minister of Internal Affairs [2017] NZHC 887 at [10]-[12], approved in Finewood Upholstery Ltd, above n 2, at [9].
4      Li v Chief Executive, Ministry of Business, Innovation and Employment [2018] NZHC 1171, [2018] NZAR 1134 at [21].

(c)the appeal may be dipositive of the case in law or as a practical matter; and

(d)the arguments in the appeal are capable of bona fide and serious argument; and

(e)the issue on appeal concerns a decision of sufficient significance to the parties or a question of law or general principle…

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 Flintoft v Oneforest Limited

Details

AGLC: Flintoft v Oneforest Limited [2021] NZHC 2493
Case: [2021] NZHC 2493
Decision Date: 22 September 2021

CaseChat Overview and Summary

The applicants, Tod Bernard Flintoft and Sara Jane Flintoft, sought leave to appeal a decision granting OneForest Limited leave to stay the proceedings based on an arbitration clause in their contract. The primary legal issue was whether the court had jurisdiction to grant a stay under rule 5.49 of the High Court Rules 2016 without compliance with article 8 of schedule 1 of the Arbitration Act 1996. The applicants argued that the court's decision was erroneous, as OneForest's failure to qualify for a stay under article 8 was fatal to the stay application. The applicants also contended that the court erred in adopting a contractual analysis to determine if OneForest had objected to jurisdiction.

Associate Judge Lester assessed the application for leave to appeal by considering the merits of the appeal, the potential prejudice to the applicants, the delay an appeal would cause, and the costs of the appeal. The judge found that a reasonably arguable issue arose concerning whether OneForest's reservation of rights in an email accompanying its statement of defence constituted an effective protest to jurisdiction, even if no similar statement was made to the court as required by rule 5.49. The judge also determined that the other grounds of appeal were not arguable. Ultimately, the judge granted leave to appeal, concluding that the interests of justice were served by allowing the appeal.

The final orders included granting leave to file the draft notice of appeal and reserving costs.

Orders