Melmerley Investments Ltd v McGarry

[2001] NZCA 149

IN THE COURT OF APPEAL OF NEW ZEALAND CA57/01

BETWEEN	MELMERLEY INVESTMENTS LIMITED
Intended Appellant

AND	WILLIAM DIGBY JOHN MCGARRY
Intended Respondent

Hearing:	14 May 2001
Coram:	Richardson P Thomas J Tipping J
Appearances:	R J Asher QC for Intended Appellant W A McCartney for Intended Respondent
Judgment:	14 May 2001

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

1. The background to this application for special leave to appeal to this Court can be found in the judgment of Glazebrook J.  She refused to grant Melmerley leave to appeal from the judgment of Cartwright J who had reversed the judgment of Callander DCJ which had been in Melmerley’s favour.  The only two issues that could possibly justify a grant of special leave are first, Cartwright J’s approach to consideration and second, her suggested implication that Mr Seavill of Melmerley had been dishonest.  These two matters must be viewed against the fact that the case involves the sum of no more than $50,000 and possibly significantly less.  The circumstances raise an arguable issue whether the Judge’s approach to consideration was correct.  On its own this point may not have been sufficient to justify a second appeal.  The precedent importance of the judgment is not likely to be high, a fortiori if it is read with other judgments on the subject of consideration.

2. The second point is raised on the basis that it affects Mr Seavill’s reputation.  He reads the judgment as impugning his honesty.  In its context the Judge’s reference to honest belief may have been intended to have a more limited connotation but her words are certainly capable of being read as saying that Mr Seavill was putting forward a dishonest claim on behalf of Melmerley.

3. We have considered the submissions on both sides, both written and oral.  When the two issues raised are viewed in combination we consider a further appeal is justified.  The criteria identified in Waller v Hider [1998] 1 NZLR 412 (CA) and confirmed in Snee v Snee (2000) 13 PRNZ 609 (CA) are met.  Both procedurally and substantively Melmerley has an argument that Cartwright J erred on the honesty issue and Melmerley also has an argument that the Judge erred in relation to consideration.  The public and private interests thereby arising justify a further examination of the case by this Court.  The application is accordingly granted with costs to Melmerley in the sum of $1500.00 plus disbursements including the reasonable travel and accommodation expenses of counsel to be fixed if necessary by the Registrar.

   Solicitors

   Morgan Coakle, Auckland for Intended Appellant

   Palmer & Associates, Auckland for Intended Respondent