| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA109/2022 [2022] NZCA 273 |
| BETWEEN | RICHARD MCNAUGHTON |
| AND | RODNEY MILLER |
| Court: | Collins and Katz JJ |
Counsel: | Applicant in person |
Judgment: | 27 June 2022 at 11:00 am |
JUDGMENT OF THE COURT
A The application for leave to appeal is declined.
BThe applicant must pay each of the respondents costs for a standard application on a band A basis and usual disbursements
____________________________________________________________________
REASONS OF THE COURT
(Given by Katz J)
Introduction
Mr McNaughton applies to this Court for leave to appeal a decision of Associate Judge Johnston ordering Mr McNaughton to provide security for costs.[1] The Judge declined Mr McNaughton’s subsequent application for leave to appeal to this Court.[2] Mr McNaughton now applies to this Court for leave to appeal, pursuant to s 56(5) of the Senior Courts Act 2016.
Leave principles
[1]McNaughton v Miller [2021] NZHC 2688 [Security judgment].
[2]McNaughton v Miller [2022] NZHC 232 [Leave judgment]. Mr McNaughton was required to apply to the High Court for leave to appeal before applying to this Court: Senior Courts Act 2016, s 56(3).
The principles that apply to an application seeking leave to appeal an interlocutory decision are well settled. In Finewood Upholstery Ltd v Vaughan Fitzgerald J observed that:[3]
[13]The requirement for leave to appeal should serve as a “filtering mechanism”, to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.
The following considerations apply:[4]
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.
Background
[4]Greendrake v District Court of New Zealand [2020] NZCA 122 at [6], citing Finewood Upholstery Ltd, above n 3.
Mr McNaughton is a solicitor. He initially represented himself, including preparing and filing submissions in support of this leave application. Mr McNaughton advises, however, that he has recently been granted legal aid. He is now apparently represented by counsel in the High Court proceeding. The respondents have been represented by counsel throughout.
The High Court proceeding is against three remaining defendants (the claims against two other defendants have been discontinued) and alleges breach of contract, breach of the Fair Trading Act 1986, negligent misstatement, fraud, conspiracy and promissory estoppel.
The underlying dispute concerns the purchase of a plumbing and drainage company…
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- McNaughton v Miller [2022] NZCA 273
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- [2022] NZCA 273
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