Forde v Li

[2016] NZHC 1428

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2015-412-000100 [2016] NZHC 1428

BETWEEN

CAVAN JAMES FORDE AND

MARTIN CAVAN MCLEOD FORDE Appellants

AND

HUGH JIAN LI Respondent

Hearing:	28 June 2016
Appearances:	L A Anderson for Appellants D P Robinson for Respondent
Judgment:	28 June 2016

ORAL JUDGMENT OF GENDALL J

[1]      Before   the   Court   is   an   interlocutory   application   by  the   respondent, Hugh Jian Li for leave to appeal to the Court of Appeal against a decision I gave in this Court at Dunedin on 18 February 2016.  That decision allowed the appeal by the appellants against a decision of the District Court at Dunedin dated 18 August 2015.

[2]      The application is opposed by the appellant.

[3]      The grounds on which the order seeking leave to appeal is sought are set out

in the respondent’s application as follows:

(a)       The learned High Court Judge erred in:

(i)Holding   that   the   plaintiff   was   required   to   conclusively establish  the  defect  in  title  that  was  the  subject  of  the

requisition;

FORDE v LI [2016] NZHC 1428 [28 June 2016]

(ii)Failing to conclude that the threshold for a requisition was satisfied by his findings;

(iii)Holding  that  the  location  of  the  boundaries  of  the  subject property could only be established by removal of the limitation of parcels; and

(iv)Holding that historical title searches ought to have been undertaken to ascertain the true title position; and

(v)      Holding that the Lot 4 frontage ought to have been 60 feet.

(b)      The Judge failed to consider the plaintiffs’ affirmative defence under s

37 of the Property Law Act 2004; and

(c)      The proposed appeal raises questions of law or fact capable of bona fide and serious argument and the case involves some interest public or private of sufficient importance to outweigh the cost and delay of a further appeal.

[4]      As  I  have  noted,  this  application  is  opposed  by  the  appellants  and  the following grounds are advanced in support of that opposition:

(a)       There is no error in the High Court judgment in question;

(b)The  proposed  appeal  does  not  raise  any  question  of  law  or  fact capable of bona fide and serious argument; and

(c)      The case does not involve some interest public or private, of sufficient importance to outweigh the costs and delay of a further appeal.

[5]      The present application for leave to appeal is brought in reliance on s 67 of the Judicature Act 1908.  Section 67 provides:

67       Appeals against decisions of High Court on appeal

(1)       The decision of the High Court on appeal from an inferior court is final, unless a party, on application, obtains leave to appeal against that decision—

(a)      to the Court of Appeal; or

(b)      directly to the Supreme Court (in exceptional circumstances as  provided  for  in  section  14  of  the  Supreme  Court Act

2003).

(2)       An application under subsection (1) for leave to appeal to the Court of Appeal must be made to the High Court or, if the High Court refuses leave, to the Court of Appeal.

…

[6]      McGechan on Procedure at para J67.02 addresses the test to be applied on an application for leave to appeal to the Court of Appeal relating to a second appeal. J67.02 states:

J67.02 The Test

The appeal must raise some 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. Not every alleged error of law is of such importance, either generally or to the parties, as to justify further pursuit of litigation already twice considered and ruled upon by a court so the test is a restricted one.  The scarce time and resources of the Court of Appeal are not to be wasted nor additional expense for parties incurred “without realistic hope of benefit”.

…

Further, the Court of Appeal has noted the trend, both in New Zealand and in the United Kingdom “to reverse the steady increase in the number of (second appeals)  reaching  the  Court  of Appeal  and  so  to  free  up  valuable  and expensive judicial resources to give more and more effective attention to hearing first appeals.

…

In Chief Executive of Land Information New Zealand v Luke [2008] NZCA

43 at [18] the Court of Appeal explained that that trend reflected the Court’s

fundamental role and the need for proportionality in civil litigation.

[7]      In this case, as I understand the position, the dispute between these parties originated with a claim by the respondent to recover a deposit paid on a property purchase which did not proceed of an amount of $23,000.  A counterclaim by the

appellants followed.   Proceedings were issued in the District Court.   There was a hearing there for what was some five or six days ([sic] – actually two and a half to three days) following, as I understand it, an unsuccessful judicial settlement conference in that Court.  The matter was then appealed to this Court where a half day hearing ensued.   A one-half  day hearing  has  been  required  for  the present application for leave to appeal the High Court decision to the Court of Appeal which is before me.  On all of this, as I understand it, the costs and disbursements which have been incurred by these parties are very substantial and vastly exceed the substantive amounts at issue.  On this aspect, before me Mr Anderson, counsel for the appellants, noted (in his words) that “everyone is out of pocket in this case”.

[8]      With these matters in mind, I turn to the comments noted in the decision in the Chief Executive of Land Information New Zealand v Luke that there is always a need for proportionality in civil litigation such as this.   Notwithstanding that proportionality question which must arise here, having considered lengthy submissions advanced before me by counsel for the respondent in support of the present application and by counsel for the appellants in opposition, I am of the view that the proposed appeal in this case does raise a question of law or fact that is capable of bona fide and serious argument and it is a matter which does involve certain interests which are of some importance. There is a question however whether these matters outweigh the continuing and mounting costs to these parties and also the necessary delay which will delay from a further appeal.   Notwithstanding this, the application before me overall is justified and granted.

[9]      I order therefore that leave is granted to the applicants to appeal to the Court of Appeal against the decision of this Court dated 18 February 2016.

[10]     So far as costs on the application for leave are concerned, this application was opposed by the appellants.  I take the view that costs should follow the event in the usual way.  Costs are awarded to the respondent with respect to this application for leave on a category 2B basis together with disbursements, if any, as approved by the Registrar.

...................................................

Gendall J

Addendum

[11]     It is clear as McGechan on Procedure notes at para J67.07 that care is always needed to ensure that the questions for the Court of Appeal are framed in a way that clearly identifies the real issues for determination by the Court of Appeal.  On that aspect, I now make a direction that counsel are to liaise with a view to concluding the form of questions to be framed for this appeal to the Court of Appeal.

[12]     Leave is reserved however for counsel to approach the Court further on

48 hours’ notice if any further directions may be required relating to the framing of

those appeal questions.

...................................................

Gendall J

Solicitors:

Alistair D Paterson, Dunedin

Gallaway Cook Allan, Dunedin

Copy to L A Anderson, Dunedin