Mailley v Shaw - [2022] NZHC 1317

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-1185

[2022] NZHC 1317

BETWEEN
MARTIN MAILLEY

First Plaintiff

SABRINA NUTARELLI
Second Plaintiff

AND

ANTONY SHAW

First Defendant

TONY ELLIS (Discontinued) Second Defendant

THE NEW ZEALAND LAW SOCIETY

Third Defendant

On papers

Counsel:

First plaintiff self-represented

D A Cowan and J E G San Diego for first defendant T P Mullins and D A C Bullock for third defendant

Judgment:

7 June 2022

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 7 June 2022 at 10:30 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar Date……………………………..

Solicitors/Counsel:
Ord Legal, Wellington and
Doug Cowan, Auckland, for first Defendant
Lee Salmon Long, Auckland, for third defendant

Copy to:
The plaintiffs

MAILLEY v SHAW [2022] NZHC 1317 [7 June 2022]

[1] On 24 November 2020, Associate Judge Andrew struck out the plaintiffs’ claims against the defendants (the strike-out decision).1 Mr Mailley applied for a review of that decision under s 26P(1) of the Judicature Act 1908. I reviewed and upheld the strike-out decision in a re-issued judgment dated 28 October 2021 (the strike-out review decision).2

[2] On 14 December 2021, I issued a judgment refusing Mr Mailley leave to appeal against the strike-out review judgment; and reviewing the costs awarded by Associate Judge Andrew for steps taken in the strike-out application [the December judgment].3 On the same day, I issued a judgment awarding costs to the defendants on an aspect of the strike-out review decision.4

[3] Since then, several memoranda have been filed by the parties on a number of different issues. I set them out below.

Leave to appeal costs review judgment

[4] On 18 January 2022, Mr Mailley applied for leave to appeal the December judgment confirming the strike out costs awarded by Associate Judge Andrew. The application is opposed by the defendants.

[5] The principles relevant to this application are those that I applied in the December judgment when I declined to grant Mr Mailley leave to appeal Associate Judge Andrew’s strike-out decision.5 Section 26P(1AA) of the Judicature Act 1908 provides that the determination of a High Court Judge on a review of any order or decision made by an Associate Judge under s 26P(1) is final unless the High Court grants leave or the Court of Appeal grants special leave to appeal.

1      Mailley v Shaw [2020] NZHC 3102.
2      Mailley v Shaw [2021] NZHC 2359.
3      Mailley v Shaw [2021] NZHC 3433.
4      Mailley v Shaw [2021] NZHC 3447.
5      Mailley v Shaw above n 3, at [8]-[9].

[6] The principles for the grant of leave to appeal were set out in that judgment as follows:6

(a)The appeal must raise 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 the further appeal.

(b)On a second appeal, the Court of…

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 Mailley v Shaw

Details

AGLC: Mailley v Shaw [2022] NZHC 1317
Case: [2022] NZHC 1317
Decision Date: 7 June 2022

CaseChat Overview and Summary

In Mailley v Shaw, Martin Mailley and Sabrina Nutrelli brought proceedings against Antony Shaw, Tony Ellis, and the New Zealand Law Society. The proceedings were struck out by Associate Judge Andrew, a decision which was reviewed and upheld by Toogood J. Mr Mailley applied for leave to appeal the decision, and the defendants sought costs. The court was required to determine whether leave to appeal the costs review judgment should be granted, and if so, what costs were payable. The court considered the principles for the grant of leave to appeal and the principles for costs. The court held that the application for leave to appeal the costs review judgment raised no question of law or fact, or matter of public or private importance, that justified a second appeal on the issue of costs. The law and principles of costs were well settled and were properly applied in this case. The court also considered the issue of costs from the leave to appeal strike out and review of strike out costs. The court held that the defendants were entitled to scale costs and disbursements. The court further considered an error in the December judgment and ordered that the error be corrected. Finally, the court dismissed the application for a stay of proceedings due to missing documents.

The court ordered that the application for leave to appeal the review of Associate Judge Andrew’s costs decision was dismissed. Mr Mailley was ordered to pay each of the first and third defendants the sum of $5,616.50 in costs plus disbursements of $95.65 in respect of the judgment in Mailley v Shaw [2021] NZHC 3433. The court also corrected the error at [56] of the judgment in Mailley v Shaw [2021] NZHC 3433 by deleting the sum of $55,720.40 and replacing it with a sum of $57,547.97. The defendants were entitled to costs according to scale on the application for leave to appeal the costs review judgment.

Orders