McNaughton v Miller - [2022] NZHC 232

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CIV-2021-435-01

[2022] NZHC 232

BETWEEN
RICHARD MCNAUGHTON

Plaintiff

AND

RODNEY MILLER

First Defendant

AARON SLIGHT
Second Defendant (Discontinued)

RIGG ZSCHOKKE LIMITED
Third Defendant (Discontinued)

GARY KAYE
Fourth Defendant

TAVERNER KEYS & CO

Fifth Defendant

Hearing: On the papers

Appearances:

Plaintiff in person

D Bleier for first defendant

V Wethey for fourth defendant J Forrest for fifth defendant

Judgment:

18 February 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1] In my judgment of 8 October 2021 I made an order for security for costs in favour of the remaining defendants — the first, fourth and fifth defendants — against the plaintiff, and stayed the plaintiff’s proceeding pending the provision of security. The security ordered was in the form of a mortgage over a property registered in the

MCNAUGHTON v MILLER [2022] NZHC 232 [18 February 2022]

name of the plaintiff’s parents, in which, the plaintiff informed the Court, he had a substantial equitable interest, the value of which exceeded the amount already secured over the property by a sufficient margin to cover the amount of security for costs sought against him.

[2]Costs were reserved.

[3] On 3 November 2021 the plaintiff filed an interlocutory application for leave to appeal to the Court of Appeal from my judgment together with a lengthy affidavit. The application is opposed by the remaining defendants who have filed notices of opposition supported by memoranda.

[4] The matter was not referred to me until 20 December 2021, that is to say the last sitting day of the year. At that stage, the only issue seemed to be whether it was necessary to have a hearing in order to determine the plaintiff’s leave application, or whether it could be dealt with on the papers. I issued a minute on 25 January 2022 enquiring whether the plaintiff or any of the defendants were seeking a hearing. The Registrar confirms that no party has done so.

[5]I therefore proceed to deal with the application on the papers.

[6] The plaintiff requires leave to appeal because s 56(3) of the Senior Courts Act 2016 so provides in relation to proposed appeals from interlocutory judgments. The principles that apply to such applications are well settled:

(a)Reasons should be expressed in general terms and be brief;

(b)The requirement of leave is intended to operate as a filtering mechanism intended to ensure that only appeals on significant matters are allowed — the process is intended to weed out appeals that are trivial or unmeritorious, or merely tactical;1

1 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13] affirmed in Fairway Holdings Ltd v McCullagh [2008] NZCA 605 at [11].

(c)The threshold for leave is high and intended to reduce the number of interlocutory appeals;2

(d)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;3

(e)Accordingly, applications for leave…

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] NZHC 232
Case: [2022] NZHC 232
Decision Date: 18 February 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the matter of McNaughton v Miller was heard, where Richard McNaughton, the plaintiff, sought an appeal against a decision that required him to provide security for costs. The defendants in the case were Rodney Miller, Gary Kaye, and Taverner Keys & Co, with Aaron Slight and Rigg Zschokke Limited having been discontinued. The plaintiff's application for leave to appeal was opposed by the remaining defendants, who filed notices of opposition supported by memoranda.

The court had to decide whether the plaintiff should be granted leave to appeal the interlocutory judgment made on October 8, 2021, which required him to provide security for costs in the form of a mortgage over a property registered in the name of his parents. The appeal process for interlocutory judgments is governed by section 56(3) of the Senior Courts Act 2016, and the principles that apply to such applications are well settled. The court had to consider whether the proposed grounds of appeal raised matters of general or public importance or were of sufficient importance to the parties to outweigh the lack of general or public importance.

The court found that the plaintiff had effectively invited the order that he now sought to appeal, and that the prospect of any appeal being successful was not good. The court also considered that granting leave to appeal would not serve the interests of justice, as the plaintiff had the option of proposing an alternative form of security. Therefore, the court refused leave to appeal, and costs were reserved.

Orders