Liu v Cutting - [2019] NZCA 228

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA3/2019
[2019] NZCA 228

BETWEEN	YICHUAN (JESSE) LIU, KIN TO (STEVEN) LAU AND DINAH QIU Applicants
AND	DEREK EDWIN CUTTING Respondent

Court:	Brown and Gilbert JJ
Counsel:	Applicants in person D G Collecutt for Respondent
Judgment: (On the papers)	18 June 2019 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal is declined.
BThe applicants are to pay costs to the respondent as for a standard application for leave to appeal on a band A basis together with usual disbursements.

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REASONS OF THE COURT

(Given by Gilbert J)

Yichuan (Jesse) Liu, the first-named applicant, was assaulted at his secondary school on two occasions by a fellow pupil in 2005. Jesse sustained a broken jaw in the second assault. In 2007, Jesse and his parents, the second and third-named applicants, instructed the respondent, Derek Cutting, to pursue redress against the school claiming that it had failed to take adequate steps to protect Jesse. In March 2007, Mr Cutting retained a barrister, Gregory Keene, to assist with the claim. The applicants became dissatisfied with Mr Keene’s performance and they terminated his instructions in December 2008. They disputed liability to pay the balance outstanding of Mr Keene’s fees amounting to $15,125.82.
Mr Cutting issued proceedings in the District Court at Auckland for recovery of the fees in March 2009. The applicants denied liability for payment of the fees and counterclaimed in negligence. They claimed special damages of $20,000 being legal costs and disbursements incurred with replacement lawyers plus general damages of $30,000. The claim and counterclaim were heard over five days, in September and December 2016 and in January 2017. In a detailed judgment delivered on 17 July 2017, Judge Hinton found the applicants liable to pay legal fees to the respondent in the sum of $10,500.[1] The Judge dismissed the applicants’counterclaim.[2]
[1]Cutting v Liu [2017] NZDC 15680.
[2]At [126]–[135].
The applicants appealed to the High Court. The appeal was dismissed by Hinton J in a judgment delivered on 31 January 2018.[3] The applicants then applied to the High Court for leave to bring a second appeal to this Court. That application was declined by Hinton J in a judgment delivered on 30 November 2018.[4] The applicants now apply to this Court for leave to bring a second appeal.
[3]Liu v Cutting [2018] NZHC 33.
[4]Liu v Cutting [2018] NZHC 3130.
A decision of the High Court on appeal from the District Court is generally final.[5] A second appeal is exceptional and requires the grant of leave. Leave will only be granted if the proposed appeal raises some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. On a second appeal the Court is not engaged in the general correction of error. Rather, its…

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 Liu v Cutting

Details

AGLC: Liu v Cutting [2019] NZCA 228
Case: [2019] NZCA 228
Decision Date: 18 June 2019 at 2.30 pm

CaseChat Overview and Summary

In Liu v Cutting, the applicants sought leave to bring a second appeal against a decision of the High Court, which had dismissed their appeal from the District Court. The applicants sought to argue that the District Court had erred in finding that they were liable to pay outstanding legal fees to the respondent, and in dismissing their counterclaim for negligence. The Court of Appeal found that the application for leave to bring a second appeal was seriously misconceived and declined the application. The Court found that the applicants had not identified any question of law or fact capable of bona fide and serious argument that would justify leave to bring a second appeal.

The applicants argued that there were errors in the District Court judgment that might affect its correctness, but the Court of Appeal found that the applicants had not identified any such errors. The applicants also argued that the District Court had erred in declining to allow them to file evidence regarding their alleged losses, but the Court of Appeal found that there was no arguable error in the District Court's approach. The applicants further argued that the District Court had erred in finding that the barrister who had assisted the respondent had given honest evidence, but the Court of Appeal found that this factual issue had already been considered by two courts and there was no justification for considering it a third time.

The Court of Appeal declined the application for leave to bring a second appeal and ordered the applicants to pay the respondent's costs as for a standard application for leave to appeal on a band A basis together with usual disbursements. The Court found that the applicants should regard themselves as fortunate that the Court had decided not to exercise its discretion to order them to pay indemnity costs. The Court of Appeal emphasised that a decision of the High Court on appeal from the District Court is generally final, and a second appeal is exceptional and requires the grant of leave. Leave will only be granted if the proposed appeal raises some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.

Orders