Havanaco Ltd v Stewart

[2005] NZCA 158

IN THE COURT OF APPEAL OF NEW ZEALAND

CA68/05

BETWEENGARY HASWELL CATLEY

Applicant

ANDPERRY DEVELOPMENTS LIMITED

Respondent

Hearing:13 June 2005

Court:Anderson P, Chambers and O'Regan JJ

Counsel:M C Black for Applicant

P J Morgan QC for Respondent

Judgment:17 June 2005 

JUDGMENT OF THE COURT

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