ALeave to appeal against the decision of the High Court dated 28 September 2004 is given.
B Costs on this application for leave reserved.
REASONS
(Given by Chambers J)
[1] Gary Catley, the applicant, succeeded against Perry Developments Ltd in the District Court, but Perry’s appeal to the High Court was successful. In order to further appeal, Mr Catley needs leave, either from the High Court or from this court: Judicature Act 1908, s 67. Priestley J declined leave: HC HAM CIV2003-419-1684 13 April 2005. Mr Catley then sought leave from this court.
[2] We have determined that leave should be given. Under r 27(2)(b) of the Court of Appeal (Civil) Rules 2005, this court is not required to give reasons for giving leave. This accords with the position on leave applications in the Supreme Court, where reasons are rarely given if the leave application is successful.
[3] The applicable test on a s 67 leave application is well established: Waller v Hider [1998] 1 NZLR 412 (CA) at 413. We are satisfied that Mr Catley has shown that there are questions of law in this case which are capable of serious argument and that the case does involve interests of sufficient importance to outweigh the cost and delay of a further appeal. That the case raises questions of law capable of serious argument is perhaps best shown by the fact that Judge Maze in the District Court and Priestley J in the High Court came to quite different conclusions on them. Mr Black, for Mr Catley, persuaded us that there is a real question as to what the legal consequences are if a creditor settles with one surety and assigns the balance of the debt and the security to that surety and then subsequently recovers more towards the debt from a co-surety.
[4] It is appropriate that costs on the application for leave be reserved. They can be determined by the court which hears the substantive appeal.
Solicitors: David Nielsen, Hamilton, for Applicant Morrison Kent, Auckland, for Respondent
Details
AGLC
Havanaco Ltd v Stewart [2005] NZCA 158
Case
[2005] NZCA 158
Decision Date
CaseChat Overview and Summary
Gary Haswell Catley has appealed against the decision of the High Court, seeking leave to appeal to the Court of Appeal of New Zealand. The High Court had previously dismissed Perry Developments Ltd's appeal against a District Court decision in which Catley had succeeded. The Court of Appeal has determined that leave should be granted, allowing Catley to further appeal the matter. The primary legal issue before the Court of Appeal was whether the applicant had demonstrated that there are questions of law in the case that are capable of serious argument and that the case involves interests of sufficient importance to outweigh the cost and delay of a further appeal. The Court found that Catley had satisfied these criteria, particularly in relation to the legal consequences of a creditor settling with one surety and assigning the balance of the debt and the security to that surety, before recovering more towards the debt from a co-surety. This legal question was highlighted as one that warranted further examination, given the differing conclusions reached by the District Court and the High Court. The Court of Appeal also noted that the case raises questions of law capable of serious argument, best evidenced by the differing judicial interpretations on the matter. The Court has reserved costs on this application for leave, which can be determined by the court that hears the substantive appeal. The appeal will now proceed to the next level of court.