Millbrook Country Club v S.F.M. Investments Limited HC Auckland CIV-2009-404-2850

[2011] NZHC 1507

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-2850

BETWEEN  MILLBROOK COUNTRY CLUB Plaintiff

ANDS.F.M. INVESTMENTS LIMITED First Defendant

ANDGARRY ALBERT MUIR Second Defendant

Hearing:         On the papers

Counsel:         C Heaton for the Plaintiff

G A Muir for Defendants

Judgment:      16 September 2011

JUDGMENT OF ELLIS J

[on applications for leave to appeal and for stay]

This judgment was delivered by me on 16 September 2011

At 12 noon, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:     Morrison Kent, PO Box 10035, Wellington 6143

Muir Law, PO Box 37508, Auckland

MILLBROOK COUNTRY CLUB V S.F.M. INVESTMENTS LTD HC AK CIV-2009-404-2850 16 September

2011

[1]      I concluded my judgment dated 9 August 2011 by saying:

At the hearing before me Mr Muir very responsibly signalled the likelihood of an application for leave to appeal and for a stay in the event that his application  for  review  was  unsuccessful.    In  light  of  the  timetable  that remains in play and the imminent hearing date of 25 September, I direct that any such application(s) are to be made within five working days of the date of this judgment and any notice of opposition is to be filed within  two working days of that date.  Any such application is to be referred to me and (subject to any objection from counsel) I will deal with it on the papers.

[2]      The defendants duly filed an application for leave to appeal together with a

(further) application to vacate the orders made by Associate Judge Faire on 8 July

2011 (effectively seeking an adjournment of the summary judgment hearing scheduled for 27 September).  The applications are opposed.  None of the parties has objected to my determining them on the papers.  Memoranda have been filed.

[3]      The grounds advanced in support of the first application are:

(i)     That the interests of justice require that the judgment be appealed to the Court of Appeal;

(ii)     The judgment should be subject to appeal in that it:

A.     fails to establish jurisdiction to hear the review;

B.     determines issues not the subject of the application for review; C.          is contrary to established Court of Appeal authority;

D.     determines issues not determine by the Judge below;

E.     as otherwise appearing in the memorandum filed in support of this application.

[4]       First,  it  can  be  noted  that  these  grounds  do  not  engage  with  the  well established test governing the grant of leave in cases such as the present: Waller v Hider.[1]  As the Court of Appeal held in that case the appeal must raise some question

of law or fact capable of bona fide and serious argument in a case involving some

private or public interest of sufficient importance to outweigh the cost and delay of the appeal. The requirements of justice are the overriding principle.

[1] Waller v Hider [1998] 1 NZLR 412.

[5]      Although Mr Muir has called in aid the interests of justice, in my view those interests point clearly against the grant of leave here.   That is because the simple reality is what Mr Muir seeks is deferral of the 27 September summary judgment hearing.  I assume that is because his and his company’s liability has, on the claim for summary judgment, already been determined and there is no basis upon which they can challenge the quantum of the damages now claimed.  Similarly, I assume that he has not applied to Court in the ordinary way for an adjournment because there is no basis upon which he would obtain one.  The only avenue left open to him is to take “jurisdictional” points in an attempt to assert that and “nullity”.  Viewed in that light, it is impossible to see how there can be any important public or private interest engaged by the appeal.

[6]      Nor do I consider that the proposed appeal can be said to raise some question of law that is capable of bona fide and serious argument.  Mr Muir seeks, rather, to pile  “jurisdictional”  argument  upon  “jurisdictional”  argument  in  an  attempt  to advance the proposition that decisions that are adverse to him are “nullities”.   I observe that this is a course that has been unsuccessfully pursued by him in the context of other litigation to which he is a party: Redcliffe Forestry Venture Ltd v

Commissioner of Inland Revenue.[2]

[2] Redcliffe Forestry Venture Ltd v Commissioner of Inland Revenue [2011] 1 NZLR 336

[7]      In the present case, for example, Mr Muir now seems to be contending that, notwithstanding his own authorship of the review proceedings that were determined by me, this Court had no jurisdiction to entertain them, based on the Court of Appeal’s decision in Radioworks Ltd v Commissioner of Inland Revenue.[3]    In that case the Court of Appeal held that Courtney J had had no jurisdiction to decline an application for review brought under s 26P(1) of the Judicature Act 1908 because the

Associate Judge had not in fact made an “order or decision” that was reviewable

under that section.

[3] Radioworks Ltd v Commissioner of Inland Revenue [2011] NZCA 129.

[8]      To the extent questions of estoppel can arise on jurisdictional issues (see the comments of William Young P in Attorney-General v Howard)[4] then Mr Muir’s own conduct (in applying for review) seems to me to count against him on this issue.  But even putting any estoppels to one side I expressly turned my mind to the point that now appears to be relied on by him. At [38] of my judgment I said that:

Lastly, and although it was not argued by Millbrook, I would add that there must be some question about whether orders of the sort made by Associate Judge Faire are reviewable at all.  By analogy with the case law in relation to rights of appeal under s 66 of the Judicature Act 1908[5]   it seems to me doubtful that timetable directions can properly be said to constitute an “order or  decision”  in  terms  of  s  26P  of  that Act.    However  in  light  of  my conclusions in relation to the other matters above, it is unnecessary for me finally to determine that point.

[4] Attorney-General v Howard [2011] 1 NZLR 58 (CA).

[5] Association of Dispensing Opticians of New Zealand Inc v the Opticians Board [2000] 1 NZLR 158 (CA).

[9]      As will be evident from the fact that I heard and determined Mr Muir’s application  for  review  on  the  merits,  I had  not  understood  that  he was  in  fact contending that I had no jurisdiction to do so.  Had he clearly made that argument, my finding might well have been as intimated in paragraph [38] and the whole application then viewed as an abuse of process.  And as Ms Heaton for the plaintiff points out, had I made a firm finding in that regard, there would be no possibility of obtaining leave to appeal.

[10]     Even putting those matters to one side, however, I am ultimately left in no doubt that neither of the defendants’ applications should be granted.  No possibility of injustice arises because Mr Muir will be free to advance the defendants’ jurisdictional arguments in any appeal that follows on from the determination of the substantive   summary   judgment   application   which   is   due   for   hearing   on

27 September 2011.  That is likely to be a far more expeditious way of dealing with the issues than holding up the hearing of that application (which, as my earlier judgment makes clear, already has a protracted history) pending the resolution of the appeal in respect of which leave is now sought.  As I have said, the course Mr Muir now seeks to pursue would not only be productive of unnecessary delay but, in my

view, designed to achieve it.

[11]     The applications are dismissed accordingly.   The hearing on 27 September

2011 is to take place as scheduled.

Rebecca Ellis J