IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV 2014-488-187 [2016] NZHC 3193
BETWEEN RODNEY DAVID HAINES AND
KATHLEEN ANNE NORMAN Plaintiffs
AND
ROBERT JOHN HERD First Defendant
RHUMBA HOLDINGS LIMITED Second Defendants
Hearing: 7 December 2016 Counsel:
N Gedye QC for plaintiffs
D Bigio QC & M Singh for first and second defendantsJudgment:
22 December 2016
JUDGMENT OF DUFFY J
This judgment was delivered by me on 22 December 2016 at 11.30 am pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors / Counsel: Glaister Ennor, Auckland
D R Bigio QC, Barrister, Auckland
Richard Mark, Kerikeri
Nathan Gedye QC, Barrister, Auckland
HAINES AND NORMAN v HERD & RHUMBA HOLDINGS LTD [2016] NZHC 3193 [22 December 2016]
[1] The first and second defendants in this proceeding (the defendants) seek leave to appeal to the Court of Appeal against a judgment I delivered, which allowed a review of a decision of Bell AJ dismissing the proceeding on the ground Vanuatu was the appropriate forum conveniens.
[2] I found New Zealand was the appropriate forum conveniens because at the hearing before me the plaintiffs informed me that they proposed to amend their statement of claim. I was satisfied that the proposed amendment (which was before me in draft form) brought the plaintiffs’ claims within the jurisdiction of this Court. Since delivery of my judgment, the plaintiffs have filed their amended statement of claim.
[3] The defendants contend that I erred in law in the following instances:
(a) In finding that, in the context of a review of an Associate Judge’s discretionary decision on a protest to jurisdiction, the reviewing court may set aside that decision where a material change of circumstance following the decision of the court of first instance is alleged by the plaintiffs;
(b)In the context of a review of a decision on whether New Zealand was the forum conveniens, taking into account an unfiled draft amended statement of claim annexed to the plaintiffs’ submissions (served 10 working days before the review hearing) which had not been before the first instance court, and therefore was not the subject of the decision being reviewed;
(c) In finding that the decision of the Associate Judge, which was otherwise found to be a correct exercise of his discretion in relation to the statement of claim actually filed and served in the proceeding, was plainly wrong because it did not take into account a draft amended claim which was not and could not have been before him at first instance;
(d)In failing to dismiss the application for review having found that the Associate Judge committed no reviewable error of law in relation to the claim which was before him; and
(e) In failing to adequately take into account the extent of defences available to the defendants that relate to Vanuatu and land law, and whether Vanuatu would be the most appropriate forum for the conduct of the proceeding.
[4] The defendants contend that the errors they identify raise…
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- Haines v Herd [2016] NZHC 3193
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CaseChat Overview and Summary
The court considered the legal principles for the grant of leave to appeal, which require that 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. The court found that the defendants' arguments did not meet the test for the granting of leave to appeal. The court held that there was no reason to treat the review of the decision on forum conveniens any differently from other interlocutory decisions that can have the effect of dismissing a proceeding. The court also found that the argument that there had been a failure to adequately take into account the extent of defences that relate to Vanuatu land law did not raise questions of law that are capable of bona fide and serious argument or of sufficient importance to outweigh the cost and delay associated with a second level appeal.
The court dismissed the application for leave to appeal and granted the parties leave to file memoranda on costs.
Orders
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