Marr v Mills - [2021] NZHC 603

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

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 Marr v Mills

Details

AGLC: Marr v Mills [2021] NZHC 603
Case: [2021] NZHC 603
Decision Date: 24 March 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Ms Caroline Desiree Marr sought leave to appeal against a previous judgment, which upheld the District Court’s finding that her breach of warranty regarding her GST-registered status caused the Mills to suffer a recoverable loss in the unavailability of a GST refund. The Mills, the respondents, opposed the application for leave to appeal. The central issue before the court was whether the applicant’s contentions warranted a second appeal, particularly focusing on the intersection of common law damages and the Goods and Services Act 1985 in the context of a breach of warranty regarding GST registration.

The court examined whether the proposed appeal raised questions of law or fact of sufficient importance to justify further litigation. The applicant argued that the case presented a unique situation where a claimant should have to establish that they would have actually received a GST refund. The applicant contended that the intersection of common law damages with the statutory scheme warranted clarification. However, the court found that the statutory context did not justify a departure from well-established common law principles. The court was satisfied that the Mills would have likely recovered the GST refund, based on the risk allocation in the warranty, and no further clarification of the law was required.

The court ultimately refused the application for leave to appeal, finding that the proposed appeal did not raise significant legal issues warranting further litigation. The court did, however, extend the time for filing the application for leave to appeal to 14 December 2020. The Mills were considered to be the successful parties and were preliminarily awarded costs on steps taken in opposing the application. If the parties could not agree on the costs, the court reserved the right to determine the costs on short memoranda to be filed within a specified timeframe.

Orders