Humphries v Carr - [2010] NZCA 238

IN THE COURT OF APPEAL OF NEW ZEALAND
CA616/2009
[2010] NZCA 238
BETWEENRODNEY JOHN HUMPHRIES
Appellant

ANDEWAN ROBERT CARR
Respondent

Hearing:17 May 2010

Court:O'Regan, Priestley and Ronald Young JJ
Counsel:A R Gilchrist and L M Nicholson for Appellant
S P Rennie for Respondent

Judgment:8 June 2010 at 2.30 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

B The High Court judgment dated 4 September 2009 is quashed.

C The proceeding is remitted to the High Court.
DThe respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________
REASONS OF THE COURT
(Given by Priestley J)
Introduction
[1]       The issue on this appeal arises out of something of a procedural morass.
[2]       On 4 September 2009 Fogarty J refused the appellant’s application for a permanent stay of a High Court judgment for specific performance which had been made against him in 2006. This appeal focuses entirely on whether the Judge’s decision is correct.
Background
[3]       The major events along the procedural pathway of the parties protracted dispute are as follows:
·In November 2006 Associate Judge Christiansen made a summary judgment order against the appellant (who did not appear) for specific performance of various obligations under a deed of assignment. The order was for the appellant to transfer specific property to the respondent. The appellant lodged an appeal.
·In May 2007 the parties executed an amended settlement agreement (referred to in various judgments as the ASA) which was intended to resolve a number of outstanding issues between the parties, including the specific performance judgment.
·For various reasons the ASA was not implemented. The appellant cancelled it. Litigation ensued. In September 2008 this Court held on appeal (amongst other things) that the ASA had indeed been validly cancelled and was at an end.[1]

·The appellant’s consistent stance throughout has been that the respondent should not be permitted to enforce the specific performance order when that dispute had been resolved by the cancelled ASA. He thus made an application to set aside Associate Judge Christiansen’s November 2006 judgment. The application was decided by Associate Judge Osborne in April 2009. He declined to set aside the summary judgment.
·Faced with this set back, the appellant lodged an appeal against Associate Judge Osborne’s April 2009 judgment. That appeal was to be heard in conjunction with the long-pending appeal from Associate Judge Christiansen’s 2006 judgment.
·In May 2009 the appellant lodged an application seeking a permanent stay of Associate Judge Christiansen’s 2006 judgment, which application was decided by Fogarty J.
·In addition to seeking a permanent stay the appellant abandoned his appeals against the decisions of both Associate Judges.
·Faced with Fogarty J’s adverse decision the appellant both lodged this appeal and also sought leave from this Court to set aside his notices of abandonment. On 17 February 2010 the appellant’s application in respect of the notices of abandonment was declined.[2]
[1] Carr and Ors v Frost and Ors [2008] NZCA 391.
[2] Humphries v…

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 Humphries v Carr

Details

AGLC: Humphries v Carr [2010] NZCA 238
Case: [2010] NZCA 238
Decision Date: 8 June 2010

CaseChat Overview and Summary

The case of Humphries v Carr involved an appeal by Rodney John Humphries against the decision of Fogarty J, who had refused his application for a permanent stay of a High Court judgment for specific performance. The respondent, Ewan Robert Carr, had obtained a summary judgment in 2006 against Humphries for specific performance of obligations under a deed of assignment. The dispute between the parties had been ongoing, and a settlement agreement had been executed but later cancelled. The appeal focused on whether the Judge's decision to refuse the permanent stay was correct.

The legal issues involved in the appeal centred on the qualitative differences between the application to set aside the summary judgment and the application for a permanent stay. The Court had to determine whether the Associate Judge's findings on the estoppel argument and interpretation of the amended settlement agreement were fundamental to his decision, and whether these findings gave rise to a res judicata issue.

The Court found that the Associate Judge's findings on the estoppel argument were not fundamental to his decision, and therefore did not give rise to a res judicata. The Court held that the basis on which Humphries was seeking a permanent stay of the High Court's summary judgment was qualitatively different and gave rise to different considerations from those which had to be considered in the context of an application to set aside the 2006 summary judgment. The Court allowed the appeal, quashed the High Court judgment dated 4 September 2009, and remitted the proceeding to the High Court for resolution of the merits of the stay application. The respondent was ordered to pay the appellant's costs for a standard appeal on a band A basis and usual disbursements.

Orders