Harris v AMS Auto & Marine Spraypainters Limited

[2005] NZCA 247

IN THE COURT OF APPEAL OF NEW ZEALAND

CA167/05

BETWEENWILLIAM RAYMOND HARRIS

Applicant

ANDAMS AUTO & MARINE SPRAYPAINTERS LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION)

Respondent

Hearing:17 October 2005

Court:Hammond, William Young and Panckhurst JJ

Counsel:I J Law for Applicant

S P Bryers for Respondent

Judgment:20 October 2005 

JUDGMENT OF THE COURT

A        THE APPLICATION FOR LEAVE TO APPEAL IS DISMISSED.

BThe respondent will have costs of $1,500 together with usual disbursements.

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REASONS

(Given by Panckhurst J)

[1]       In seeking leave to appeal the applicant must demonstrate the existence of a question of law capable of bona fide and serious argument in a context involving some interest, public or private, of sufficient importance to justify the costs and delay of a further appeal:  Waller v Hider [1998] 1 NZLR 412 (CA) at 413-414.

[2]       The proceeding concerns events which occurred in 1997.  It was issued in early 2003.  Mr Harris, a solicitor, is sued by the respondent company on behalf of a receiver, who cannot recover fees due to him from either the debenture holder or the company.  The gist of the claim is that Mr Harris was negligent in relation to timely registration of the debenture and that the receiver’s fees accrued in relation to earlier proceedings in which the validity of the debenture was ultimately upheld:  Parsons v Norris [2002] 2 NZLR 497 (CA). Hence, Mr Harris has been sued to recover the fees, which total $22,050.

[3]       The applicant sought, and obtained, summary judgment against the plaintiff company in the District Court.  That decision was overturned by Allan J in the High Court in relation to a construction point, being whether the relevant debenture provision conferred on the receiver an entitlement to receive payment of his fees from the company in the circumstances of this case.

[4]       While we accept that the question of construction is arguable, we do not consider that the case warrants a second right of appeal.  It is not in the interests of justice to countenance a further appeal given the amount at stake, that the proceeding is still only at an interlocutory stage and having regard to the history of the case to which we have already referred. 

[5]       Leave is therefore declined.  The respondent will have costs of $1,500 together with usual disbursements.

Solicitors:
Phillips Fox, Auckland for Applicant
Anthony J Nolan, Hamilton for Respondent