Haines v Herd - [2016] NZHC 3193

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 defendants

Judgment:

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…

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 Haines v Herd

Details

AGLC: Haines v Herd [2016] NZHC 3193
Case: [2016] NZHC 3193
Decision Date: 22 December 2016

CaseChat Overview and Summary

In the case of Haines v Herd, the plaintiffs sought leave to appeal against a decision that found New Zealand was the appropriate forum conveniens. The defendants, including Robert John Herd and Rhumba Holdings Limited, sought leave to appeal to the Court of Appeal against the judgment allowing a review of a decision of Bell AJ dismissing the proceeding on the ground that Vanuatu was the appropriate forum conveniens. The plaintiffs had proposed to amend their statement of claim, which brought their claims within the jurisdiction of the Court. The defendants contended that the court erred in law by considering the proposed amended statement of claim in its decision.

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