Marr v Mills
[2021] NZHC 603
•24 March 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-1299
[2021] NZHC 603
UNDER Section 60 of the Senior Courts Act 2016 IN THE MATTER
of an application to the High Court for leave to appeal a High Court decision to the Court of Appeal
BETWEEN
CAROLINE DESIREE MARR
Applicant/Intended Appellant
AND
KAREN ANN MILLS and GRAEME WILLIAM MILLS
Respondents/Intended Respondents
Hearing: On the papers Appearances:
S A Keall for the applicant/intended appellant
S A Grant for the respondents/intended respondents
Judgment:
24 March 2021
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 24 March 2021 at 11.00am.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
S A Keall Barrister, Auckland S A Grant Barrister, Auckland APLS Lawyers, Auckland
Daniel Overton Goulding, Auckland
MARR v MILLS [2021] NZHC 603 [24 March 2021]
[1] Under s 60 of the Senior Courts Act 2016, Ms Marr seeks leave to appeal against my 12 November 2020 judgment,1 upholding the District Court’s finding Ms Marr’s admitted breach of warranty as to her GST-registered status caused the Mills recoverable loss in the unavailability of a GST refund to provide working capital for their intended businesses.2
Application for extension of time
[2] Ms Marr’s application was filed two working days out of time on 14 December 2020, after counsel understood she required leave for her attempted direct appeal to the Court of Appeal. No issue is taken with her consequent application for an extension of time in which to bring her leave application.
Application for leave to appeal
[3]Leave to appeal may be granted if the proposed appeal would raise:3
… 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, both to the Court system and to the parties, and the delay involved in the further appeal. Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.
Discussion
[4] For Ms Marr, Steve Keall argues the intersection of common law damages with the scheme of the Goods and Services Act 1985—in this contended unique case of GST-registration warranty breach, in which the purchasers were not GST-registered— qualifies for a second appeal to establish “consistency between common law remedies and tax administration.” He contends a claimant in the Mills’ position “should have to establish that she would have actually received a GST refund for the sum claimed, or
1 Marr v Mills [2020] NZHC 3004.
2 Mills v Marr [2020] NZDC 13200.
3 Snee v Snee (1999) 13 PRNZ 609 (CA) at [22], reinforcing Waller v Hider [1998] 1 NZLR 412 (CA) at 413 (citing Rutherfurd v Waite [1923] GLR 34 and Cuff v Broadlands Finance Limited [1987] 2 NZLR 343 at 346–347).
put differently, lost the chance to receive the GST refund claimed”. As a matter of policy, he says, claimants should not be able to receive “the equivalent of an input credit without the burden of output credits”. Claimants of common law damages for missing out on a statutory entitlement should have to prove the entitlement would have been received in the counterfactual.
[5] I do not see anything in the statutory context here justifying such a shift from well-established common law principle, as set out in the judgment sought to be appealed.4 Critically, damages are not awarded in performance of the breached contract, but as a monetary assessment of the probable value to the plaintiff of the consequent loss. Here, I was satisfied the Mills probably would have recovered the GST refund, in reliance on the warranty’s risk allocation.5 No clarification of the law is required. If I am wrong in that, leave to appeal is available directly from the Court of Appeal.6
Result
[6] Time is extended to 14 December 2020 for filing Ms Marr’s application for leave to appeal, but leave to appeal is refused.
Costs
[7] In my preliminary view, as the successful parties, the Mills are entitled to 2B costs and disbursements on steps taken in opposing the application. That is because, so far as I can tell, no step in opposing this averagely complex application required other than a normal amount of time.
[8] If that is not accepted by the parties, or they cannot otherwise agree, I reserve costs for determination on short memoranda of no more than five pages—annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate—to be filed and served by the Mills within ten working days of
4 Marr v Mills, above n 1, at [11].
5 At [14] and [16].
6 Senior Courts Act 2016, s 60(2).
the date of this judgment, with any response and reply to be filed within five working day intervals after service.
—Jagose J