Jones v Llanhennock Trust Partnership

[2023] NZHC 833

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-329

[2023] NZHC 833

BETWEEN

GREGORY JOHN JONES

Applicant

AND

LLANHENNOCK TRUST PARTNERSHIP

Respondents

Hearing:	4 April 2023
Appearances:	G J Jones in person (by AVL) D M O’Neill for Respondents
Judgment:	19 April 2023

JUDGMENT OF WYLIE J

(Leave to appeal/stay/security for costs)

This judgment was delivered by Justice Wylie On 19 April 2023 at 2.00 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Vosper Law, Cambridge, D O’Neill, Hamilton

Copy to:
Mr G J Jones

JONES v LLANHENNOCK TRUST PARTNERSHIP [2023] NZHC 833 [19 April 2023]

Introduction

[1]There are three applications before the Court:

(a)an application by the applicant, Gregory Jones, for leave to appeal my judgment of 10 August 2022;1

(b)an application by Mr Jones for a stay of my judgment (including my costs judgment)2 while the appeal is heard; and

(c)an application by the respondents for security for costs in respect of a counterclaim brought against them by Mr Jones.

[2]        Before dealing with the applications, I record that Mr Jones took umbrage with aspects of my judgment of 10 August 2022. He was particularly concerned that I referred to and in part relied on judgments given by other Judges which criticise actions he has taken. He was also concerned by my comment that he had breached the obligation imposed by r 13.8 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. He demanded that I should “state my position”, advise him whether I had any personal knowledge, direct or indirect, of the issues referred to in the affidavits filed, whether I have a close personal relationship with any of the Judges who issued the judgments referred to in my judgment and whether I have had discussions with any Judges about him personally or about any aspects of the litigation in which he is involved.

[3]        I declined to respond to the demands made by Mr Jones. I indicated to him that if there had been anything that required me to recuse myself, I would have done so. I asked Mr Jones to proceed  and deal  with the  applications before  the Court. Mr Jones agreed to do so albeit reluctantly; he asked me to record that he did so under protest and that he was not waiving his entitlement to raise further the issue of my recusal.

[4]I now turn to deal with each of the applications before me.

1      Jones v Hawkins [2022] NZHC 1965.

2      Jones v Hawkins [2022] NZHC 2327.

Leave to appeal

Relevant law

[5]        My judgment of 10 August 2022 was given in relation to an interlocutory application in a civil proceeding—Mr Jones was seeking leave to issue third and subsequent party notices. Leave to appeal is required pursuant to s 56(3) of the Senior Courts Act 2016.

[6]        The leave requirement is a filtering mechanism intended to limit the cases which can go on appeal in the interests of the finality of litigation and recognising the workload of the Court of Appeal, while preserving the integrity of the law and the interests of justice.3 The following considerations are relevant: 4

(a)the threshold for the grant of leave is high;

(b)an applicant must identify an arguable error of law or fact;

(c)the alleged error should be of general or public importance warranting determination, or, otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

(d)the circumstances must warrant incurring further delay; and

(e)the ultimate question is whether the interests of justice are served by granting leave.

Submissions

[7]        Mr Jones sought to identify an arguable error of law or fact. He accepted that his application for leave to issue third and subsequent party notices did not fall within sub-rr 4.4(a) and (b) of the High Court Rules 2016 as I held in my judgment. He also

3      Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679; Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715 in relation to applications for leave to appeal interlocutory decisions of the District Court under what was s 71A of the District Courts Act 1947.

4      Finewood Upholstery Ltd v Vaughan, above n 3 at [9]–[14]; cited with approval in Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].

accepted my finding that sub-rr 4.14(1)(c) and (d) were engaged, but challenged my exercise of the discretion. He asserted that, contrary to my findings, the allegations of conspiracy made by him against the proposed third and subsequent parties were “more than adequate”. He argued that they could found a satisfactory pleading. He took issue with my reference to similar allegations made by him in various associated proceedings arising out of the same broad factual matrix. He also took issue with my observation that he has been primarily responsible for much of the delay that has occurred, claimed that I had made a factual error and asserted that the issues that should be raised on appeal are “of clear public and private importance”. He submitted that the delay involved in any appeal is justified, in order to hear all relevant evidence at the one hearing and that the interests of justice are more clearly served by all matters being dealt with and heard at the same time.

[8]        Mr O’Neill, for the respondents, argued that Mr Jones had not identified any arguable error of fact or law, that the matter is not of any general or public importance, that there are no circumstances warranting further delay and that the interests of justice are not served by granting leave.

Analysis

[9]        I do not consider that Mr Jones identified an arguable error of law or fact. He disagreed with findings I made but he does so on the basis of bald and unsupported assertions. Mr Jones put nothing before me to suggest that I erred in law or even that it is arguable that I did so. He did challenge one factual finding I made relevant to delay. This was only one aspect of my analysis of responsibility for the delays which have occurred. Of itself, it was of no great relevance and even if my finding was wrong, it could not have altered the overall conclusion. In essence, Mr Jones disagreed with my decision in its totality. Disagreement with a decision does not mean that the decision is wrong—it simply means that the reader disagrees. That is not enough to get over the threshold requirement to obtain leave to appeal.

[10]      Further, and in any event, it is clear that the alleged errors are not of general or public importance. They have no precedential value. I accept that they are important to Mr Jones, but for the reasons set out in my judgment, the allegations of a wide-

ranging conspiracy in the thoroughbred industry are unsupported and untenable. They have been considered and rejected by the Courts on a number of occasions.5

[11]      Also, in my view, the circumstances do not warrant incurring further delay. The substantive proceedings were issued some considerable time ago and they have been delayed on multiple occasions. The respondent partnership is understandably frustrated and, in my view, further delay is unwarranted.

[12]      Nor am I persuaded that the interests of justice would be served by granting leave.

[13]Accordingly, Mr Jones’ application for leave to appeal is declined.

Stay of proceedings

[14]      This application was brought by Mr Jones pursuant to r 20.10 of the High Court Rules. Mr Jones acknowledged that the application could not succeed unless he obtained leave to appeal.

[15]      In case Mr Jones makes an application for special leave to appeal, I briefly record my views on this application.

(a)An appeal does not operate as a stay. Rather, the Court can on application stay proceedings and grant interim relief. The general rule is that a party is entitled to enjoy the fruits of a judgment in its favour and a party seeking a stay has to persuade the Court that, if it were not granted, its appeal rights would be rendered nugatory.6 In exercising its discretion, the Court engages in a balancing exercise, weighing up the position of both parties.7 The following factors are relevant— namely:

5      And since my judgment of 10 August 2022, see Jones v Stace Hammond Lawyers [2022] NZCA 450 and [2023] NZCA 34.

6      Philip Morris (NZ) Ltd v Liggett & Myers Tobacco Co (NZ) Ltd [1977] 2 NZLR 41 (CA).

7      Duncan v Osborne Buildings Ltd (1992) 6 PRNZ 85 (CA).

(i)the bona fides of the applicant as to the prosecution of the appeal;

(ii)whether the successful party will be injuriously affected by the stay;

(iii)the effect on third parties;

(iv)the novelty and importance of the questions involved;

(v)the public interest in the proceeding;

(vi)the overall balance of convenience; and

(vii)the apparent strength of the appeal.

(b)I accept that Mr Jones wishes to prosecute an appeal.

(c)The respondents have obtained an order for costs. They are entitled to both enforce that order and to advance their substantive proceedings. As I have noted, they have already been delayed in endeavouring to do so. They should not, in my view, be further delayed and I consider that they would be injuriously affected were a stay to be granted.

(d)I accept that a stay would have no effect on the prospective third parties.

(e)There is, in my view, no novelty or importance in the issues which  Mr Jones wishes to take on appeal.

(f)There is also, in my view, no public interest in the proceeding and any appeal.

(g)The overall balance of convenience does not favour Mr Jones.

(h)Any appeal does not seem to me to have any significant prospects of success.

[16]      Accordingly, I would have declined Mr Jones’ application for a stay of my judgment even if I had granted leave to appeal.

Security for costs

[17]      Security for costs is sought by the respondents pursuant to r 5.45 of the High Court Rules. Inter alia, if a Judge is satisfied, on the application of a defendant, that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff’s proceeding, a Judge can, if he or she thinks it is just in all circumstances, order the giving of security for costs.

[18]      An applicant must first satisfy the Court of one or more of the threshold criteria under r 5.45(1). If it is so satisfied, the Court then has to consider whether or not to exercise its discretion under r 5.45(2), what amount security should be fixed at and whether a stay should be ordered.

[19]      The respondents assert that there is reason to believe that Mr Jones will be unable to pay their costs if he is unsuccessful in his counterclaim. Leigh Hawkins has filed an affidavit on behalf of the respondents recording the various costs orders outstanding and owing by Mr Jones, demands made by the partnership’s solicitors for payment of the same and Mr Jones’ response that “I have no intention of paying your client’s [sic] any money whatsoever”. Mr Hawkins also refers to costs ordered against Mr Jones by van Bohemen J and to a successful claim brought against Mr Jones by NZ Bloodstock Finance and Leasing Ltd, for $431,632.22, plus interest and solicitor/client costs. Mr Hawkins commented that Mr Jones has used the same or similar tactics in each proceeding. He noted that common themes include the following:

(a)a claim that there is a conspiracy against him;

(b)an appeal against every judgment against him;

(c)seeking the recusal of Judges that do not side with him; and

(d)seeking to avoid costs awards by appeals and/or applications for stays.

Mr Hawkins concluded that Mr Jones has no money to meet a costs award and that he is drawing out the proceedings in order to avoid paying costs for as long as possible, in the hope that the claimants will give up.

[20]Rule 5.45(1) contemplates that:8

…there should be credible (that is, believable) evidence of surrounding circumstances from which it may reasonably be inferred that the [party] will be unable to pay the costs. This does not … amount to proof that the [party] will, in fact, be unable to pay them.

An applicant does not have to prove inability to pay in the normal civil sense. The meaning of the word “satisfied” in r 5.45(1) does not imply any onus or standard of proof, but rather, merely indicates that the Court has come to a decision on the evidence before it.9

[21]      Here, the only evidence of the surrounding circumstances which the respondents can point to is the fact that various judgments have gone against Mr Jones and that he has not paid the amounts ordered. Mr Jones has however stated that he does not intend to pay the amounts awarded against him until he succeeds or exhausts his appeal rights. Mr Jones reiterated this stance before me. He stated as follows:

I will not pay them one cent until every legitimate and reasonable avenue to defend myself is exhausted. That is my entitlement, subject to [the] Court’s discretion and I remain unmoved on that conviction.

Mr Jones also made it clear that he is seeking to appeal all outstanding judgments given against him. He filed an affidavit annexing copies of various affidavits he has filed in the Supreme Court.

8      Concorde Enterprises Ltd v Anthony Motors (Hutt) Ltd (No 2) [1977] 1 NZLR 516 (SC) at 519 per Quilliam J.

9      Wishart v Murray [2016] NZHC 3132 at [7]; And see, Jessica Gorman (ed) McGechan on Procedure (looseleaf ed, Thomson Reuters) at [5.45.02].

[22]      In my judgment, the available evidence establishes only  intransigence  by  Mr Jones and not necessarily an inability to pay.

[23]      I am not satisfied that there is good reason to believe that Mr Jones would be unable to pay the respondents’ costs if he is unsuccessful in his counterclaim. Accordingly, there is no basis on which I can proceed to order the giving of security, and I decline to do so.

[24]      The respondents’ application for security for costs on the counterclaim is dismissed.

Costs

[25]      The parties have broadly enjoyed equal success. Neither has succeeded on his or their respective applications and both have successfully resisted the application(s) made by the other. It is my preliminary view that costs should lie where they fall.

[26]If either party disagrees, then I make the following directions:

(a)any application for costs (and disbursements) is to be filed by way of memorandum, within five working days of the date of release of this judgment;

(b)any memorandum in response is to be filed within a further five working days; and

(c)memoranda are not to exceed three pages.

I will then deal with the issue of costs and disbursements on the papers, unless I require the assistance of Mr Jones and/or counsel for the respondents.

Wylie J