Herd v Haines - [2017] NZCA 201

IN THE COURT OF APPEAL OF NEW ZEALAND

CA65/2017
[2017] NZCA 201

BETWEEN	ROBERT JOHN HERD First Applicant RHUMBA HOLDINGS LIMITED Second Applicant
AND	RODNEY DAVID HAINES AND KATHLEEN ANNE NORMAN Respondents

Hearing:	15 May 2017
Court:	Kós P, Asher and Brown JJ
Counsel:	D R Bigio QC and M Singh for Applicants N Gedye QC for Respondents
Judgment:	23 May 2017 at 4.30 pm

JUDGMENT OF THE COURT

AThe application for special leave to appeal is dismissed.
BThe applicants must pay the respondents costs for a standard application on a Band A basis together with usual disbursements.

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REASONS OF THE COURT

(Given by Kós P)

The applicants, Robert John Herd and Rhumba Holdings Ltd, are defendants in a proceeding filed in the High Court by the respondents, Rodney David Haines and Kathleen Anne Norman. The respondents sold their launch to Mr Herd for AUD 400,000 plus transfer of land in Vanuatu worth AUD 400,000. Possession of the launch was given in May 2012, with Mr Herd’s consideration due either 5 May 2013 or (he asserts) 26 September 2013. It is common ground neither aspect of the consideration has been supplied. Mr Herd asserts that he did offer land of that value to Mr Haines within time but the respondents rejected it. The cash component was not paid at all, Mr Herd apparently asserting that the refusal of the land allegedly offered meant also that he need not tender that component of the consideration.
In October 2013 the respondents retook possession of the launch in Queensland. It was eventually repatriated to New Zealand. The respondents issued proceedings in 2014 seeking summary judgment for an inquiry into loss, judgment for the amount determined on that inquiry, interest and costs.
The applicants protested jurisdiction on the basis the matter should be heard in the courts of Vanuatu. The respondents are in New Zealand. Mr Herd resides in Australia. Rhumba Holdings, a Herd company, alone is domiciled in Vanuatu. The sale agreement however provided it was to be governed by the non-exclusive jurisdiction of the Courts of Vanuatu, and interpreted in accordance with the laws of Vanuatu (excluding French law).
The applicants’ protest to jurisdiction was upheld by Associate Judge Bell in the judgment delivered 22 December 2015.[1] The respondents sought review of that decision and Duffy J overturned it in a decision dated 18 August 2016.[2] In a further judgment dated 22 December 2016 Duffy J refused leave to appeal to this Court.[3] The applicants now seek special leave to appeal under s 26P(1AA) of the Judicature Act 1908.
[1]Haines v Herd [2015] NZHC 3365.
[2]Haines v Herd [2016] NZHC 1928.
[3]Haines v Herd [2016] NZHC 3193.
To obtain leave, the applicants must raise a question of law or fact capable of serious argument involving an interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. As special leave is involved, this is no low threshold.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Herd v Haines

Details

AGLC: Herd v Haines [2017] NZCA 201
Case: [2017] NZCA 201
Decision Date: 23 May 2017 at 4.30 pm

CaseChat Overview and Summary

In the case of Herd v Haines, the applicants, Robert John Herd and Rhumba Holdings Limited, sought special leave to appeal against a decision of Duffy J in the High Court of New Zealand. The respondents, Rodney David Haines and Kathleen Anne Norman, had filed a proceeding against the applicants, claiming that Herd had failed to provide the agreed consideration for the sale of a launch, amounting to AUD 800,000. Herd had initially offered land in Vanuatu as part of the consideration, but the respondents rejected this offer. The applicants argued that they had made a valid offer of land and that the failure to provide the cash component was due to the respondents' rejection of the land offer. The applicants also contested the jurisdiction of the New Zealand courts, arguing that the matter should be heard in Vanuatu.

The primary legal issue before the Court of Appeal was whether Duffy J was permitted to consider an unfiled draft amended statement of claim in her decision to overturn the Associate Judge’s ruling on jurisdiction. The applicants contended that the reliance on this new material constituted a fresh hearing on new evidence, which was improper in the context of a review. The Court of Appeal considered whether this issue was of sufficient importance to warrant special leave to appeal, balancing it against the cost and delay associated with further appeals. The Court found that while Duffy J’s consideration of the draft pleading might be arguable, it did not significantly alter the substantive judgment, which was focused on the contractual obligations rather than peripheral land title issues.

The Court concluded that the applicants had not demonstrated that the issue of whether Duffy J erred in her approach to the review was of sufficient importance to outweigh the costs and delays of a further appeal. The Court also noted the long duration of the proceedings, which began in 2014, and the need for the matter to be resolved. Accordingly, the application for special leave to appeal was dismissed, and the applicants were ordered to pay the respondents’ costs for the appeal.

Orders