Haines v Herd - [2016] NZHC 1928

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2014-488-187 [2016] NZHC 1928

BETWEEN
RODNEY DAVID HAINES AND

KATHLEEN ANNE NORMAN Plaintiffs

AND

ROBERT JOHN HERD First Defendant

RHUMBA HOLDINGS LIMITED Second Defendant

Hearing: 8 June 2016

Counsel:

N Gedye QC for Plaintiffs
D Bigio for Defendants

Judgment:

18 August 2016

JUDGMENT OF DUFFY J

This judgment was delivered by me on 18 August 2016 at 4.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

Solicitors / Counsel:
Richard Mark, Barrister & Solicitor, Kerikeri
Glaister Ennor, Auckland
D Bigio, Barrister, Auckland

HAINES v HERD [2016] NZHC 1928 [18 August 2016]

[1] The plaintiffs in this proceeding (Haines) are reviewing the decision of

Bell AJ in which he ruled that the suitable forum for this proceeding is Vanuatu.1

The first and second defendants (Herd and Rhumba respectively) oppose the review.

[2] A decision on a forum non conveniens application is a discretionary one, and therefore an appellate court will not interfere unless a material error of principle has been made.2 In Schumacher v Summer Grove Estates the Court of Appeal stated this
principle in relation to the decision being made by a trial judge.3 In the present case

I am determining a review of a decision made by an Associate Judge. However, I do not think this warrants a different approach. The criteria for establishing such errors are: (a) error of law or principle; (b) taking account of irrelevant considerations; (c) failing to take account of relevant considerations; or (d) the decision is plainly
wrong.4

[3] However, another basis for an appellate court interfering with the exercise of a discretion is when there has been a material change of circumstance since the decision in the court of first instance was made. This can be viewed as a separate ground for interfering with the decision on review, or simply as a basis for establishing that the initial decision is one that due to the change of circumstance is now either plainly wrong or otherwise qualifies in terms of the criteria for when an appellate court will interfere with the exercise of a discretion.

[4] Haines has now filed a proposed draft amended statement of claim which materially alters the grounds of the claim against Herd and Rhumba. Bell AJ was influenced by a potential defence raised by Herd and Rhumba that relied upon the land law of Vanuatu. This related to whether, as part of the consideration that was due under the contract for sale of a vessel, Herd was in a position to deliver title to land in Vanuatu that came within the contract specification in cl 2.1(b) of the
variation deed.5 Bell AJ concluded that the resolution of this question would require

1      Haines v Herd [2015] NZHC 3365.
2      See Schumacher v Summergrove Estates [2014] NZCA 412, [2014] 3 NZLR 599 at [29].
3      Though in Schumacher, as in the present case, the initial decision was made by an Associate…

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 1928
Case: [2016] NZHC 1928
Decision Date: 18 August 2016

CaseChat Overview and Summary

In Haines v Herd, the plaintiffs sought to review a decision by Bell AJ that the appropriate forum for their proceeding was Vanuatu, rather than New Zealand. The defendants opposed the review. The legal issue before the court was whether there had been a material change of circumstance since Bell AJ's decision, warranting a fresh look at the question of the appropriate forum. The court found that there had been a material change in the nature of the proceeding, which made Bell AJ's decision plainly wrong. The original proceeding had hinged on the interpretation of the land law of Vanuatu, but the plaintiffs had materially re-shaped their claim against the defendants, such that the land law of Vanuatu was no longer relevant. The court found that the remaining relevant factors favoured New Zealand as the forum conveniens.

The court set aside Bell AJ's decision and held that the forum conveniens for this proceeding was New Zealand. The plaintiffs were granted leave to file memoranda on costs.

Orders