Harrison v Harrison
[2017] NZHC 3052
•8 December 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-993 [2017] NZHC 3052
UNDER The Trustee Act 1956 and others BETWEEN
PAULINE JANICE HARRISON Plaintiff
AND
GRAEME ROSS HARRISON First Defendant
ADRIENNE HARRISON Second Defendant
Hearing: 11 August 2017
(on papers)
Appearances:
Ms P J Harrison - Plaintiff
Mr R Parmenter for Defendants
(on papers)Judgment:
8 December 2017
JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE
This judgment was delivered by me on
08.12.17 at 3.30 pm, pursuant to
Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
HARRISON v HARRISON & ANOR [2017] NZHC 3052 [8 December 2017]
[1] By an application dated 30 June 2017, the plaintiff appears to apply for several measures:
(a) An application for leave to appeal against the judgment dated 29 March
2017 in which the plaintiff’s claim was struck out (the “strike out judgment”);1
(b) An application for leave to appeal against the judgment dated 30 June
2017 in which costs were fixed and directing payment of those costs
(the “costs judgment”);2 and
(c) An application for a stay – presumably as to the payment of costs.
[2] It is difficult to understand what the grounds put forward for the various applications are. However, I apprehend that in regard to application “(c)” the ground is that the plaintiff is currently a bankrupt.
[3] The intituling also includes Ms A J Harrison as an intended appellant. This is not the first time that Ms P J Harrison has appended the name of her daughter, Ms A J Harrison, to proceedings in this Court in circumstances where Ms A J Harrison was never a party to the proceedings. Therefore, whatever other orders might be able to be made on the application, it will not be possible to make orders in favour of Ms A J Harrison.
[4] The applications for leave to appeal concern both a determination that I made striking out the proceedings brought by Ms P J Harrison and the costs decision that I made consequent upon that order.
The strike out judgment
[5] The proceedings have been struck out due to non-payment of security for costs.3
1 Harrison v Harrison [2017] NZHC 598 [Strike out judgment].
2 Harrison v Harrison [2017] NZHC 1498.
3 Strike out judgment, above n 1.
[6] The plaintiff seeks leave to appeal that decision. The defendants filed a memorandum in response.
[7] Clause 10(1) of sch 5 to the Senior Courts Act 2016 provides:
All proceedings pending or in progress in a court operating under the relevant Act immediately before the commencement of this clause may be continued, completed, and enforced only under the relevant Act (including the relevant rules of court) as if that Act had not been repealed by this Act.
[8] Therefore, a proceeding pending on 1 March 2017 continues under the relevant Act, which is defined as meaning the Judicature Act 1908.4 I also note that cl 11(2) of sch 5 confirms that a proceeding pending on 1 March 2017 must be continued, completed, and enforced under the High Court Rules 2016.
[9] The sole issue remaining, as the Court of Appeal identified in Sutcliffe v Tarr,5
is what constitutes a “proceeding” for the purposes of cl 10.
[10] The Court determined that proceedings commenced in the High Court prior to
1 March 2017 will continue under provisions of the Judicature Act through all High Court stages of the proceeding, and through any appeals in the Court of Appeal or the Supreme Court, to final disposition and enforcement.6
[11] This means that s 56(4) of the Senior Courts Act will not govern this application. Instead, s 66 of the Judicature Act is the relevant section. It provides:
The Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of the High Court, subject to the provisions of this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.
[12] As the Supreme Court stated:7
4 Schedule 5, cl 7.
5 Sutcliffe v Tarr [2017] NZCA 360 at [20].
6 At [33].
7 Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309.
[31] … s 66 does give an appeal as of right against interlocutory decisions of all kinds made in the High Court unless the Judicature Act itself or a rule or order made pursuant to the Act creates a restriction.
[13] The starting point, therefore, is that an appellant in the position of Ms P J Harrison does not need leave from the High Court to appeal. This Court does not have jurisdiction to hear the application for leave to appeal. That jurisdiction lies with the Court of Appeal and any appeal must be made in accordance with pt 3 of the Court of Appeal (Civil) Rules 2005 (the “Rules”).
[14] Rule 29(1)(a) provides that a party must bring an appeal within 20 working days after the date of the decision against which the party wishes to appeal. The plaintiff must now rely on r 29A, which would allow her to apply for an extension of time in which to appeal.
[15] As the defendants will not consent to an extension, as per r 29A(4), the plaintiff must apply under pt 2 for an extension of time in which to appeal. As noted above, this Court does not have power to grant such an extension.
[16] The application, which can be construed as an application for an extension of time to appeal, cannot be granted by this Court and it is dismissed.
The costs judgment
[17] The plaintiff also has an appeal right pursuant to s 66 against the costs judgment.
[18] The plaintiff filed an application within time to this Court. But, as I have said, the appeal must be made to the Court of Appeal. The application, which can be construed as an application for an extension of time to appeal, cannot be granted by this Court and it is dismissed.
[19] I note for completeness that the defendants submit that it is unnecessary to bring an appeal against the costs judgment because if the strike out judgment were reversed on appeal, there would be collateral orders reversing the costs judgment. I consider that this submission by the defendants is correct.
[20] Quite apart from anything else, such an outcome does not cause any hardship to the plaintiff because, assuming she successfully seeks leave to appeal the strike out judgment to the Court of Appeal, the strike out judgment and costs judgment appeals could be heard together. If the strike out judgment was wrongly entered in the view of the Court of Appeal, the costs orders would consequentially be vacated.
The stay
[21] Given that any costs order depends on the appeal against the strike out judgment, the defendants initially consented to a stay on the direction to pay out until the Court of Appeal determines the matter. But in their later submissions dated 11
August 2017, they submitted:
The strike out Judgment is in force. In spite of my memorandum noting that leave to appeal the strike out Judgment would be needed from the Court of Appeal, no application has been made. My concession about waiting for the Court of Appeal to dispose of the appeal (or application for leave to appeal) is withdrawn; the defendants should not be denied the fruits of their Judgments on the possibility that the plaintiff might apply for leave to appeal.
On the assumption that leave to appeal the costs Judgment is declined on the papers, there is no basis for a stay.
[22] To the extent that it is required, the defendants are permitted to withdraw their agreement to a stay of execution of the costs judgment.
[23] I have interpreted the plaintiff’s submissions as an application for a stay pursuant to r 20.10 of the High Court Rules.
[24] The Court of Appeal has recently set out the approach to such applications:8
[34] The well-known starting point when addressing an application for stay is that the successful party is entitled to the benefit of the judgment they have obtained. However, that is to be balanced against the interest the appellant has in preserving its position in case the appeal succeeds. Relevant factors to be accounted for when balancing these two competing interests include:
(a) whether the appeal may be rendered nugatory by the lack of a stay;
8 Broadspectrum (New Zealand) Ltd v Nathan [2017] NZCA 434.
(b) the effect on any third parties;
(c) injury or detriment to the successful party/respondent if the stay is granted; (d) the bona fides of the appellant as to prosecution of the appeal;
(e) any public interest in the proceedings;
(f) novelty and importance of the questions involved; (g) the strength of the case on the appeal; and
(h) the overall balance of convenience. (Citations omitted)
[25] I am satisfied that the stay should be declined.
[26] There is no reason to suppose that if the defendants enforce the costs judgment, they would not be able to repay it in the event that that judgment was overturned on appeal. That is the central issue as I see it on this application.
Further, the plaintiff has not moved promptly to appeal the judgment. This relates to the issue of the bona fides of the applicant. The plaintiff has not demonstrated that there is a bona fide appeal.
The costs of the current applications
[27] The defendants also seek an additional costs award relating to this application. They seek an order for costs in the sum of $1,500 as indemnity costs under r 14.6(1)(b) of the High Court Rules, on the basis of r 14.6(4)(a): “the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding”.
[28] I have considerable sympathy for the position of the defendants who find themselves caught up in litigation based on meritless claims which Ms P J Harrison has brought against them. The overall flavour of the litigation which she has brought has certainly been vexatious. The latest application is also unnecessary. These considerations mean that the approach to ordering costs is not restricted to providing a reasonable contribution to the costs which the defendants have incurred.
[29] Ms P J Harrison has had a reasonable opportunity to bring her claim before this Court. The fact that it was summarily dismissed was essentially because of her obduracy. The claim that she brought had little prospect of success. Pursuing further applications in this Court is not reasonable. It is not fair to the defendants to expose them to continuing relentless litigation in this proceeding. Considerations of justice now require that the approach to fixing costs in this case reflect the need to protect the defendants.
[30] For those reasons, I consider that an award of indemnity costs as sought by the defendants is reasonable and there will be an order accordingly.
J.P. Doogue
Associate Judge
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