Harmon Wilfred v Kaiwan Gan and Yuzhen Yu

IN THE SUPREME COURT OF NEW ZEALAND

SC 124/2013
[2014] NZSC 4

BETWEEN

HARMON LYNN WILFRED
First Applicant

CAROLYN RUTH DARE-WILFRED
Second Applicant

ANGELA MAREE SMALLEY
Third Applicant

LA FAMIA NO 1 LIMITED
Fourth Applicant

LA FAMIA NO 4 LIMITED
Fifth Applicant

AND

KAIWAN GAN AND YUZHEN YU
Respondents

Court:	Elias CJ, William Young and Arnold JJ
Counsel:	H L Wilfred in person A V Foote and B D A Collins for Respondents
Judgment:	18 February 2014

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.
BThe applicants are to pay costs of $2,500 and reasonable disbursements.

____________________________________________________________________

REASONS

At issue is an interim order for repossession made by Chisholm J in respect of premises known as Wigram Manor.[1] The applicants appealed unsuccessfully against that decision in the Court of Appeal[2] and now seek leave to appeal to this Court from the Court of Appeal decision.
[1]Gan v Wilfred [2013] NZHC 535.
[2]Wilfred v Gan [2013] NZCA 457.
In their submissions the applicants concede that the building has now been sold to a third party, rendering the interim possession order made by Chisholm J academic. This leaves, as far as we can see, in issue only orders for costs made against the applicants which relate to earlier steps in the litigation in respect of which the applicants have been unsuccessful.
We see no point of principle involved in the proposed appeal and no appearance of a substantial miscarriage of justice. Accordingly the application for leave to appeal is dismissed.

Solicitors:
Duncan Cotterill, Christchurch for Respondents

CaseChat Overview and Summary

The Supreme Court of New Zealand was asked to consider an application for leave to appeal by the applicants, Harmon Wilfred and others, against a decision made by the Court of Appeal. The original dispute was over an interim order for repossession of premises known as Wigram Manor, which was granted by Chisholm J and later upheld by the Court of Appeal. The applicants sought to appeal this decision to the Supreme Court, but they acknowledged that the property had since been sold to a third party, making the repossession order moot. The only remaining issue was the costs order made against the applicants in relation to earlier stages of the litigation.

The legal issues before the Supreme Court were whether there was a point of principle involved in the proposed appeal and whether there was an appearance of a substantial miscarriage of justice. The Court considered the applicants' concession that the main issue of the repossession order was now academic due to the sale of the property. The Court also assessed if the appeal had any broader implications or if there was a need to correct any perceived injustice in the lower court's decisions.

The Supreme Court found that there was no point of principle involved in the proposed appeal and no appearance of a substantial miscarriage of justice. Consequently, the application for leave to appeal was dismissed. The Court ordered that the applicants pay costs of $2,500 and reasonable disbursements. The decision was made on the basis that the primary issue had been resolved by events outside the control of the parties, and there were no significant legal principles or injustices that warranted further appellate review.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established