Governors Ltd v Anderson CA94/04

[2004] NZCA 348

IN THE COURT OF APPEAL OF NEW ZEALAND

CA94/04

BETWEEN  GOVERNORS LIMITED

First Appellant

AND  STEPHEN KEVIN CHAMBERLAIN

Second Appellant

ANDGEORGE ALBERT ANDERSON AND MARGARET ADAIR ANDERSON

First Respondents

AND  THOMAS MACKINNON ANDERSON

Second Respondent

Hearing:         18 October 2004 Coram:  Anderson P

Hammond J William Young J

Appearances: D G Dewar and J C Moore for Appellants J L Williams for Respondents

Judgment:      18 October 2004

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Introduction

[1]        We are required to deal with applications for special leave to appeal (by way of cross-appeal) out of time and for a stay of execution.

[2]        There are two High Court judgments in issue. In the first, which France J delivered on 23 September last year, she found in favour of Governors Ltd against Mr George Anderson, Mrs Margaret Anderson and Mr Thomas Anderson (to whom we will refer to as the “Andersons”). We will describe this as the liability judgment.

GOVERNORS LTD & ANOR V ANDERSON & ANOR CA CA94/04 [18 October 2004]

In the second, which the same Judge delivered on 21 April this year, she fixed quantum. The net amount of the judgment excluding costs is approximately

$37,500. The costs awarded come to a further $58,000.

[3]On 17 May this year, Governors appealed against the quantum judgment.

[4]        The Andersons now wish to appeal out of time against both the liability and quantum judgments.  The  first  indication  of  the  proposed  cross-appeal  came  on 7 July this year when an attempt was made, unsuccessfully, to lodge a notice of appeal. The  application  for  special  leave  to  appeal  was  not  filed  until  16  or  18 August and was not served until 6 September. The Andersons also seek a stay of execution.

The application for leave to appeal against the liability judgment

[5]        We note that the proposed appeal against the liability judgment seeks to challenge a finding of fact made by the Judge.

[6]        In issue between the parties is when the time for appeal started to run. For  the Andersons, Mr Williams argued that what we have referred to as the liability judgment is not a judgment but merely a set of findings of fact which set the scene for the quantum judgment.

[7]        That does not appear to have been the view of the Judge given what she said in the liability judgment. In para [5] of that judgment she explained why she was not going to deal with damages issues despite the entire case having been set down before her for trial:

[5]   When it became apparent the hearing would not be completed within the time set down for trial, the parties agreed to deal at the hearing solely with liability, with a further trial on damages to follow if required.

So she would have appear to have assumed that she was dealing with liability. This is also consistent with the way in which she expressed her conclusions:

[108] The re-entry in October 2000 and in June 2001 were both unlawful.

[109] The plaintiff submits that  liability against  all  defendants follows.  The defendants were represented by the same counsel and made no arguments about liability. However, they should have the opportunity to address that question in the course of the damages hearing.

By way of explanation Mr George Anderson and Mrs Margaret Anderson were the landlords with Mr Thomas Anderson having acted on their behalf. The conclusion that the re-entry was unlawful  was  tantamount  to  a  finding  of  liability  against Mr George Anderson and Mrs Margaret Anderson and was conclusive as between Governors and Thomas Anderson as to the unlawfulness of the re-entry.

[8]Section 66 of the Judicature Act 1908 provides:

66 Court  may  hear  appeals  from  judgments  and  orders  of  the  High Court

The Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of the High Court, subject to the provisions of this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.

[9]        Given  that  the  liability  judgment  included  a  liability  finding  against   Mr George and Mrs Margaret Anderson for unlawful re-entry and an in-substance declaration that the re-entry was unlawful as against Mr Thomas Anderson, we see it as a ‘judgment’ for the purposes of s 66 of the Judicature Act. Accordingly we regard the relevant time period of delay as starting from the expiry of the time for appeal following the date of delivery of the liability judgment.

[10]      The Andersons explain the delay by saying that they assumed that the time for filing an appeal against the liability judgment did not start to run until quantum and costs were fixed and that communications with legal advisers were hampered by the ill-health of Mr Thomas Anderson (who has primarily dealt with this litigation on behalf of the Andersons). Despite our conclusion that the liability judgment was one which was appealable and that the relevant period starts with the delivery of the liability judgment, we can see how the Andersons might conceivably have seen it differently. However, such merits as they have in this regard must be assesssed in light of the fact that at no stage prior to the attempt to lodge a notice of appeal did they signify an intention to challenge the liability judgment.

[11]      There is, on the other hand, plainly prejudice of a potential nature at least to Governors; this associated with the fact that after the liability judgment they have prepared for and gone to trial on quantum issues.

[12]      Given the prejudice to Governors which we have just identified, we decline leave to appeal against the liability judgment.

The application for leave to appeal against the quantum judgment

[13]      The proposed appeal as to the quantum judgment relates solely to the decision of the Judge as to costs.

[14]      The Andersons wish to argue that costs should have been given on the District Court scale rather than in accordance with High Court principles. This is because a claim for the amount recovered would be within the jurisdiction of the District Court. They say that if the District Court scale had been used, the award of costs would only have been around $12,000-$13,000.

[15]      A decision to fix costs is not a prime candidate for appellate challenge. As well, the argument outlined for the Andersons by Mr Williams may be a little simplistic. There is a discretion to depart from the District Court scale and thus a decision to fix costs on a District Court basis might well have resulted in an award of costs significantly higher than would result from a scale calculation.

[16]      On the other hand, the award of costs which the Andersons wish to challenge is part and parcel of the judgment which is challenged by Governors in this Court.  So their cross-appeal should be able to be resolved quickly by the Court. It is difficult to see prejudice and in relation to the costs award anyway, the cross-appeal by the Andersons is not long out of time.

[17]      With some hesitation we are prepared to grant leave to cross-appeal against the quantum judgment but this is confined to the award of costs (the only part of the judgment in respect to which a challenge has been signalled).

The application for the stay

[18]      Since the only live issue is the cross-appeal against the costs award, the question of a stay arises only in relation to that part of the costs award which will be in issue on the cross-appeal.

[19]      We think it appropriate to order a stay to that extent given that Governors can not offer a realistic guarantee that the Andersons will get their money back if they are required to pay it now but later win their appeal.

Result

[20]      The application for leave to appeal is refused as to the liability judgment and granted in relation to the quantum judgment but confined to the award of costs. The grant of leave to appeal is conditional upon payment of $45,000 being made within  7 days into a solicitor’s trust account on undertakings appropriate to protect Governors as to that money and accrued interest should the cross-appeal as to costs fail. The identity of the solicitor and the terms of the undertakings are to be agreed between the parties with leave to revert to this Court if such agreement cannot be reached. There will accordingly be a stay of execution as to $45,000 of the costs award. Execution may proceed in relation to the balance of the total sum awarded.

[21]Costs as to today’s hearing are reserved.

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt for Appellants Sladden Cochrane & Co, Wellington for Respondents