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McNaughton v Miller

McNaughton v Miller

Case [2022] NZCA 273 27 June 2022

Civil Litigation & Procedure

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA109/2022
[2022] NZCA 273

BETWEEN	RICHARD MCNAUGHTON Applicant
AND	RODNEY MILLER First Respondent GARY KAYE Fourth Respondent TAVERNER KEYS & CO Fifth Respondent

Court:	Collins and Katz JJ
Counsel:	Applicant in person D A Bleier for First Respondent V S Wethey for Fourth Respondent B J Sanders for Fifth Respondent
Judgment: (On the papers)	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.
[3]Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679.
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…

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 McNaughton v Miller

Details

AGLC: McNaughton v Miller [2022] NZCA 273
Case: [2022] NZCA 273
Decision Date: 27 June 2022 at 11:00 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Richard McNaughton sought leave to appeal the decision of Associate Judge Johnston, who ordered McNaughton to provide security for costs in a proceeding against three defendants. McNaughton claimed damages of just under $6 million from Rodney Miller, Gary Kaye, and Taverner Keys & Co, following the purchase of a plumbing and drainage company. The Court of Appeal, Collins and Katz JJ, considered whether McNaughton had identified an arguable error of law or fact warranting the grant of leave to appeal. The primary issue was the quantum of the security ordered, rather than the making of the order itself. The Court concluded that McNaughton had failed to identify any seriously arguable errors of fact or law in the exercise of the Judge's discretion to set the amount of security for costs. The proposed arguments were not sufficiently meritorious to outweigh the cost and inconvenience of bringing an appeal. Consequently, the high threshold for the grant of leave to appeal had not been crossed, and the interests of justice would not be served by granting leave. The application for leave to appeal was declined, and McNaughton must pay each of the respondents costs for a standard application on a band A basis and usual disbursements.

Orders