Mauger v Tucker - [2022] NZHC 1135

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-226

[2022] NZHC 1135

BETWEEN
P S MAUGER, T J MAUGER, S W MAUGER and P J CRON

Plaintiffs

AND

S M TUCKER

First Defendant

L C HERMANSSON

Second Defendant

Hearing: On the papers

Appearances:

N A Till QC for Plaintiffs

K W Clay and R L D Paul for First Defendant T J Castle for Second Defendant

A N Riches for Executors of Estate of W J Mauger

Judgment:

23 May 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction

[1] In a judgment dated 29 November 2021 (substantive judgment) I made orders sought by the plaintiffs substituting them for the original plaintiff (W J Mauger by his litigation guardian, his daughter, the last-named plaintiff, Penelope Cron), dismissed applications by the defendants for orders striking out the proceeding and reserved costs.1 In a subsequent judgment dated 10 February 2022 (costs judgment) I awarded the plaintiffs costs against the defendants.2

1 Mauger v Tucker [2021] NZHC 3214.
2 Mauger v Tucker [2022] NZHC 138.

MAUGER v TUCKER [2022] NZHC 1135 [23 May 2022]

[2] The defendants now apply for leave to appeal against both judgments. Their applications are opposed by the plaintiffs.

[3] The plaintiffs’ applications for leave to appeal against the substantive judgment focus exclusively on the dismissal of the defendants’ applications for an order striking out the proceeding. The two applications are based on the same grounds. Moreover, Mr Clay for the first defendant has elected not to make submissions. He adopts the argument advanced by Mr Castle for the second defendant. The upshot is that these applications can be dealt with as if they were one.

[4] Pursuant to s 56 of the Senior Courts Act 2016 the defendants require leave to appeal, my substantive judgment having been interlocutory in its nature.3 Conventionally, reasons for granting or declining leave are expressed in general terms and briefly. The principles governing applications for leave to appeal are well settled:

(a)the leave requirement is a “filtering mechanism” intended to ensure that only appeals on significant matters are allowed — the process weeds out appeals that are trivial, unmeritorious or merely tactical;4

(b)the threshold for leave is high and intended to reduce the number of interlocutory appeals.5

(c)the proposed grounds of appeal should raise matters “of general or public importance” or of sufficient importance to the parties to outweigh the lack of general or public importance;6

(d)thus, applications for leave involve balancing the substantive merits of the proposed appeal on the one hand against the inevitable delay in the

3 Section 4 of the Senior Courts Act 2016 defines an ‘interlocutory application’ as any application to the High Court in civil proceedings for some relief ancillary to that claimed in a pleading. An unsuccessful application for strike out falls within this definition.
4 Firewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13] affirming Fairway Holdings Ltd v McCullagh [2018] NZCA 605 at [11].

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 Mauger v Tucker

Details

AGLC: Mauger v Tucker [2022] NZHC 1135
Case: [2022] NZHC 1135
Decision Date: 23 May 2022

CaseChat Overview and Summary

In Mauger v Tucker, the defendants, S M Tucker and L C Hermansson, sought leave to appeal against the substantive and costs judgments made by Associate Judge Johnston. The plaintiffs, P S Mauger, T J Mauger, S W Mauger, and P J Cron, opposed the applications. The substantive judgment had substituted the plaintiffs for the original plaintiff, W J Mauger, dismissed the defendants' applications for orders striking out the proceeding, and reserved costs. The costs judgment awarded costs to the plaintiffs against the defendants.

The defendants' applications for leave to appeal were based on the dismissal of their applications for an order striking out the proceeding. The plaintiffs' applications for leave to appeal against the substantive judgment focused exclusively on the dismissal of the defendants' applications for an order striking out the proceeding. The plaintiffs argued that the application for substitution should be dismissed as it was unnecessary for Ms. Cron to make the application in the first place. They contended that the application was only made out of an abundance of caution, and that these factors were enough to dispose of the case as it was unnecessary for her to make the application in the first place.

The court held that the application for leave to appeal was not a strong one, and the preferable course was for the parties simply to proceed to deal with the merits of the case. The court declined the applications for leave to appeal against both judgments, and costs were reserved.

Orders