Hubbard v Kiwirail Limited - [2020] NZSC 65

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 65/2019
[2020] NZSC 65

BETWEEN	PETER BRENT HOME HUBBARD AND HARLEY HAYNES Applicants
AND	KIWIRAIL LIMITED Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	Applicants in person M L Campbell and A J W O Lomas for Respondent
Judgment:	14 July 2020

JUDGMENT OF THE COURT

AThe application by the applicants for a further extension of time to file submissions is dismissed.

B The application for leave to appeal is dismissed.

C There is no order as to costs.

____________________________________________________________________

REASONS

Introduction

The applicants, Mr Hubbard and Mr Haynes, seek leave to appeal to this Court from a decision of the Court of Appeal declining to grant an extension of time to enable the applicants to pursue an appeal in that Court.[1] The proposed appeal to the Court of Appeal would have challenged a decision of Associate Judge Smith ordering the liquidation of a company called Oceanic Palms Ltd (Oceanic Palms) and refusing to stay the decision pending other litigation.[2]
[1]Hubbard v KiwiRail Ltd [2019] NZCA 244 (Miller and Collins JJ) [CA judgment].
[2]KiwiRail Ltd v Oceanic Palms Ltd [2018] NZHC 1164 [HC judgment].
The applicants are directors of Oceanic Palms.[3] The application for an order of liquidation was made by the respondent, KiwiRail Ltd (KiwiRail). The applicants’ challenge to the liquidation was brought primarily on the basis that Oceanic Palms was solvent and they disputed KiwiRail’s claim for back rent which formed the substantial part of the claim for liquidation.

The proposed appeal

[3]The applicants bring the application in their personal capacity.

The applicants say that the Court of Appeal erred because it did not recognise the obligation of KiwiRail as a State-owned enterprise to exercise consideration of the social good in its decisions.[4] They wish to argue that the order for liquidation of Oceanic Palms was made contrary to that legal obligation and that, as a result, justice has not been done to Oceanic Palms and its directors, nor to other concerns who were tenants of KiwiRail. They also say that, in evicting Oceanic Palms, KiwiRail has not acted properly.
[4]The applicants refer to s 4(1)(c) of the State-Owned Enterprises Act 1986.
In opposing leave to appeal, KiwiRail says that the liquidation has concluded and that what is now a moot challenge to the liquidation of a company described by Associate Judge Smith as “[o]n any view of it, … insolvent”[5] does not meet the criteria for leave to appeal.[6]

Our assessment

[5]HC judgment, above n 2, at [77].

[6]Senior Courts Act 2016, s 74(2).

The Court of Appeal in declining to grant an extension of time to file the case on appeal applied settled principles. No question of general or public importance or general commercial significance accordingly arises. The proposed appeal would reprise the argument in the Court of Appeal. In determining that the proposed appeal to that Court had no merit, the Court made the following four points:[7]
(a) [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.

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Details

Case: [2020] NZSC 65
Decision Date: 14 July 2020

CaseChat Overview and Summary

Mr. Hubbard and Mr. Haynes, the applicants, sought leave to appeal to the Supreme Court of New Zealand from a decision of the Court of Appeal, which declined to grant an extension of time for the applicants to pursue an appeal in the Court of Appeal. The applicants' proposed appeal aimed to challenge a decision of Associate Judge Smith ordering the liquidation of Oceanic Palms Ltd and refusing to stay the decision pending other litigation. The applicants are directors of Oceanic Palms, and KiwiRail Ltd made the application for an order of liquidation. The applicants' challenge to the liquidation was based on the premise that Oceanic Palms was solvent and they disputed KiwiRail's claim for back rent, which formed the substantial part of the claim for liquidation.

The applicants argued that the Court of Appeal erred by not recognising KiwiRail's obligation, as a State-owned enterprise, to exercise consideration of the social good in its decisions. They wished to argue that the order for liquidation of Oceanic Palms was made contrary to that legal obligation and that, as a result, justice has not been done to Oceanic Palms and its directors, nor to other concerns who were tenants of KiwiRail. They also argued that KiwiRail had not acted properly by evicting Oceanic Palms. The applicants referred to section 4(1)(c) of the State-Owned Enterprises Act 1986.

The Court of Appeal declined to grant an extension of time to file the case on appeal by applying settled principles. The proposed appeal would not raise a question of general or public importance or general commercial significance. The Court of Appeal made four points in determining that the proposed appeal had no merit. The Court of Appeal dismissed the application for leave to appeal, and there was no order as to costs.

The applicants had sought and were granted extensions of time to file their submissions on seven occasions. The applicants sought their seventh extension of time to allow them to prepare their submissions properly and to seek discovery from KiwiRail. The Court issued a minute stating that sufficient allowances had been made to accommodate any difficulties that might arise for the applicants as lay litigants in preparing their submissions. The applicants would need to file their submissions by a specified date. The applicants sought a further extension of time of four months, which the Court declined. The Court considered that the applicants had been given considerable leeway to date and that the central point the applicants wished to make in the proposed appeal was clear from the material available.

Orders