Napier v North Shore District Court
[2020] NZHC 1130
•15 June 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-2572
[2020] NZHC 1130
BETWEEN MARTIN NAPIER
Applicant
AND
NORTH SHORE DISTRICT COURT
First Respondent
LANDSEER MOTOR INVESTMENTS AUCKLAND LIMITED
Second Respondent
Hearing: 20 May 2020 Counsel:
Plaintiff in person
B Endean (formerly A C Foley) for Second Respondent
Judgment:
15 June 2020
JUDGMENT OF WHATA J
This judgment was delivered by me on 15 June 2020 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Dawsons Solicitors, Auckland
NAPIER v NORTH SHORE DISTRICT COURT [2020] NZHC 1130 [12 June 2020]
[1] Landseer Motor Investments Auckland Limited (Landseer) obtained summary judgment against Mr Napier in the sum of $72,720. Mr Napier now seeks to judicially review that judgment, claiming the Judge unfairly allowed late affidavit evidence to be produced without affording Mr Napier an opportunity to properly read and respond to the new material in that affidavit. The sole issue for me to resolve is whether the judgment should be set aside on the grounds of procedural unfairness.
Jurisdiction
[2] Ordinarily, the failure to exercise a right of appeal counts against the grant of relief in judicial review proceedings. I therefore pressed Mr Napier on why he chose to judicially review the decision of the District Court rather than appeal it. He said that he thought judicial review was the correct procedure. I am content with that explanation as he filed his application within the time available to him to appeal. Accordingly, Mr Napier’s choice of proceedings is not a factor that should count against him.
Late statement of defence
[3] Landseer was not initially joined to the proceeding. That was rectified by an order of this Court on 17 February 2020 granting a standard application for leave to file a statement of defence out of time. It is not clear to me that leave is required, given the date of the order. But, for the avoidance of doubt, leave is granted.
Bundle of documents
[4] At the hearing it became evident that I did not have a full record of the proceedings in the District Court. Helpfully, counsel for Landseer produced that bundle after the hearing.
Background
[5] Landseer claims the following. On 9 January 2018, it reached an oral agreement with Mr Napier to sell him a 2017 Jeep Wrangler (the vehicle) for $72,720. Mr Napier was to pay that price on delivery. However, save for a part-payment he made of $2,000, Mr Napier has not paid the full purchase price. Discussions between
the parties about payment did not bear fruit, at least from Landseer’s perspective. Then, in about July 2018, Mr Napier claimed the vehicle leaked oil. Landseer offered to repair it and made bookings in August 2018 for that to occur, but Mr Napier did not take the vehicle in. Landseer then engaged debt collectors. This process also proved fruitless. Landseer filed its application for summary judgment in February 2019. Mr Napier returned the vehicle in March 2019.
[6] Mr Napier does not agree with key aspects of Landseer’s account. He claims that there was never any binding contract. He refers, for example, to an email from sales agents cancelling the agreement to sell. He maintains he told Landseer there were serious defects with the vehicle and that they were belligerent and refused to take it back. He claims they refused to mitigate their loss through selling the vehicle. Mr Napier also claimed that the Motor Vehicle Disputes Tribunal had jurisdiction over this matter.
Procedure, pleadings and evidence
[7] As this case is about procedural fairness, it is necessary to describe the process adopted in the District Court. Landseer filed a statement of claim on 5 February 2019, together with an application for summary judgment. It claimed, in short, breach of contract for non-payment of the purchase price of the vehicle. This was supported by an affidavit of Mr Matthew Wales, which set out the background to the sale and purchase. Mr Wales refers to, among other things, Mr Napier’s failure to pay, Mr Napier’s advice that the car had an oil leak and that bookings were made to have the leak looked at. He refers to an offer to pick up the vehicle for repairs as long as the purchase price was paid.
[8] Mr Napier filed his statement of defence and supporting affidavit on 17 April 2019. He denied the existence of the contract and stated his belief that “there are serious water leaks in the front compartment of the vehicle and excessive oil consumption indicating mechanical problems with the engine”. He claimed the car “was offered back to the dealership in settlement of the faults with the vehicle”, but they refused to accept it.
[9] In a joint memorandum of 24 April 2019, the parties agreed to the following directions:
(a)the plaintiff file and serve any reply affidavit on or before Monday 13 May 2019;
(b)a fixture be allocated to hear the matter as soon as possible on or after 27 May 2019;
(c)submissions for the plaintiff be filed and served 10 working days prior to the fixture;
(d)submissions for the defendant be filed and served 5 working days prior to the fixture; and
(e)appearances for the first call on Monday, 29 April be excused.
[10] The orders as sought were made on 3 May 2019. A back-up fixture was allocated for 30 August 2019. This was not acceptable to Mr Napier, who then requested an adjournment. The plaintiff maintained that the fixture should remain. The Court kept the back-up fixture, but also allocated a firm fixture of 15 October 2019. Submissions were then filed by the plaintiffs in advance of the August fixture.
[11] It appears that the August back-up fixture did not proceed. Instead, Mr Napier filed an amended statement of defence, filed on 9 September 2019, which included the following additional claims:
(a)The dispute had been referred to the Motor Vehicles Disputes Tribunal.
(b)The New Zealand Transport Agency records show that the vehicle was in the name of Mathew Wales as at 11 March 2019.
(c)The defendant is perpetrating a fraud through engaging a debt recovery firm.
[12] On 2 October 2019, an application was then made by Landseer seeking orders that the amended statement of defence be disregarded, while at the same time permitting a further affidavit to be filed by Mr Wales. The application states that it is an “updating affidavit”. It contains a large amount of material, much of it, however, was already before the Court. Most relevantly, it attaches an email from Mr Guy Stirling, the group after sales manager of Ateco Group NZ (Ateco), the New Zealand agents for the vehicle and importer of Jeep products into New Zealand. The email confirms the vehicle was driving well and free from defects. The Court issued a note that it would deal with this application at the hearing.
[13] Mr Napier also filed a supplementary affidavit on 8 October 2019. It does not refer to Landseer’s application or to Mr Wales’ second affidavit. It instead refers to the fact that he has commenced proceedings in the Motor Vehicle Disputes Tribunal.
The District Court judgment
[14] The judgment of the District Court squarely rejects Mr Napier’s view of events. The Judge found that an exchange of emails and the deposit paid confirmed Mr Napier’s agreement to purchase the vehicle. The Judge also rejected the defects claim. In reaching this view, the Judge referred to a report of 29 March 2019 by Mr Stirling of Ateco. The following passage from the report is quoted in the judgment:
Our team have been over the Jeep [Wrangler] – KU150. There are no faults found in the chassis, suspension, engine or transmission and the vehicle was found to be driving well and free of defects …
[15] The Judge concluded that none of the alleged defects were “identified by Ateco group and in respect of which there is no evidence from Mr Napier”. The Judge also found that any statutory warranties would not provide an automatic right to avoid sale. Finally, the Judge found that the lodgement of the complaint was irrelevant.
Application for adjournment/objection to Mr Wales’ affidavit
[16] The judgment refers to an application by Mr Napier to adjourn the proceedings so that he could instruct legal counsel. This was declined. The Judge noted that the proceedings commenced in February 2019, which gave ample time to instruct counsel.
Mr Napier’s complaint about the affidavit of Mr Wales (the focus of this review application) is also recorded as follows:1
[22] Mr Napier also complained about an affidavit in reply filed by Mr Wales on 2 October 2019. This was filed in response to the amended statement of defence filed by Mr Napier on 9 September 2019. The affidavit merely responded to the various defences I have itemised and added no new material that would require a further response from Mr Napier.
[17] The Judge was therefore satisfied that Mr Napier agreed to purchase the vehicle on 9 January 2018 and that, apart from a payment of $2,000, no further payment in reduction of the purchase price had been made. The Judge concluded Landseer was entitled to summary judgment.
Grounds of review and opposition
[18] Mr Napier claims he was denied his right to natural justice when the Judge allowed Mr Wales’ evidence to be produced without an opportunity to read and reply to that evidence. He refers to s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA) which affirms the right to the observance of the principles of natural justice by any tribunal or court or any other public authority.
[19] Mr Foley, for Landseer, argues there is no basis for judicial review as presently claimed. He contends that Mr Wales’ affidavit was served on Mr Napier on 2 October 2019, well in advance of the hearing, negating any procedural unfairness.
Evidence in this Court
[20] Mr Napier has filed an affidavit in support of his present application. He says that, prior to the hearing on 15 October 2019, he received an email from the Court containing a minute/direction by Judge Harrison (dated 7 October) stating the admissibility of Mr Wales’ affidavit would be determined at the hearing on 15 October 2019. He says, “he had not sighted any new affidavit from Mr Wales so was unsure what Judge Harrison was referring to”. While waiting to go into the trial, he says a friend, Mr Lyttleton, suggested Mr Foley knew what the minute might be referring to,
1 Landseer Motor Investments Auckland Ltd v Napier [2019] NZDC 20691.
as Mr Foley referred to Mr Wales’ affidavit. Mr Napier told Mr Foley that he had not seen the affidavit. Mr Foley then emailed it to him.
[21] Mr Wales has also provided another affidavit, on behalf of Landseer. He refers to an email chain which, he says, shows his original affidavit was served on Mr Napier on 2 October 2019. He also says that the District Court affidavit responded to Mr Napier’s amended statement of defence, which was filed on 9 September 2020 (without leave of the Court and out of time), after Landseer’s solicitor filed a synopsis of submissions on (and dated) 21 August 2019.
Jurisdiction
[22] Judicial review engages the supervisory jurisdiction of the Court to correct errors of law, failures to have regard to relevant considerations or in having regard to irrelevant considerations, procedural unfairness, and unreasonableness.2 The present case, however, has a very narrow scope. Mr Napier claims procedural unfairness and, in particular, a breach of his right to natural justice affirmed by s 27 of the NZBORA.
[23] It is unnecessary to elaborate further on the substantive content of this right as it is settled that natural justice demands every party before either the ordinary courts or tribunals should have a fair and reasonable opportunity to respond to evidence adverse to their case.3
[24] I note also that relief is discretionary. Relevant to the grant of relief is the materiality of the error, if proven.4
Summary judgment
[25] It is necessary in the present case to frame my assessment by reference to the threshold requirements for summary judgment. To grant summary judgment, the Court must be satisfied there is no defence to the claim. The concept of no defence,
2 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL); Peters v Davison [1999] 2 NZLR 164 (CA) at 180.
3 See for example Daganayasi v Minister for Immigration [1980] 2 NZLR 130 (CA) at 143, 145; and White v New Zealand Stock Exchange (No 2) [2002] NZAR 342 (CA) at [41].
4 See Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [59]–[61].
as Somers J put it in Pemberton, is the “absence of any real question to be tried”.5 Somers J also said the plaintiff must establish a negative, and bears the persuasive burden to convince the Court beyond any real doubt or uncertainty there is no defence.6 Furthermore, the summary judgment procedure is not appropriate where determinations of fact are required, unless the plaintiff can show the defendant’s statements of fact are baseless (i.e. that they do not pass the threshold of credibility).
Assessment
[26] Mr Foley sent a copy of Mr Wales’ affidavit to Mr Napier’s address for service (that is, his email address) on 2 October 2019. That was 13 days prior to the hearing. Mr Napier also conceded it was likely it had been served on him on 2 October 2019. So, he had ample opportunity to respond. In that time, he could have sought an opportunity to file further evidence well in advance of the hearing. He did not. In short, Mr Napier failed to protect his own position.
[27] But, I accept Mr Napier’s evidence that he had not seen or read the affidavit until 15 October. He was not challenged about that. While of his own making, he was disadvantaged by realising late that the Court had before it evidence adverse to his position. He was also not represented by counsel. Care was therefore required, especially given that the Judge needed to be satisfied that, in the context of summary judgment proceedings, there was no proper basis for the dispute about the quality of the car to go to a substantive hearing. Bearing in mind that the sale was subject to statutory warranties as to quality (a position quite properly acknowledged by Mr Foley and recorded in an attachment to the invoice recording the sale), this was an issue of substance. It is also difficult to be certain about the impact of those warranties until the defects issue is resolved.
[28] Complicating matters further still, Mr Stirling’s statements about the absence of the defects was double hearsay evidence. Such evidence is not excluded by the rules for the admissibility of hearsay in the Evidence Act 2006, but where crucial issues are at stake, as is the case here, direct evidence should be adduced.7 As far as I
5 Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3.
6 At 3-4.
7 Section 20; also see High Court Rules 2016, rr 12.4-12.5.
can tell, no explanation was given as to why an affidavit could not have been provided by the inspector of the vehicle. Furthermore, the state of the car at the time of its return is not direct evidence as to the state of the car at the time of its sale. It should have been a simple enough matter for Landseer to produce evidence as to quality at the time of sale had the car been checked before sale to Mr Napier.
[29] I also disagree with the Judge that Mr Napier had provided no evidence of defects. He provided direct evidence of the presence of leaks and excessive oil consumption. There is contemporaneous evidence of his complaints about it. Independent evidence of defects would have assisted his case. But, in that regard, there was no independent evidence from the plaintiff as to the quality of the car.
[30] Finally, I observe Mr Wales’ second affidavit required leave. It responds, in part, to the new matters identified in the amended statement of defence. But evidence about the quality of the car should have been in the first affidavit or in a reply affidavit set down for exchange (by consent) on 13 May 2019. To this extent, Mr Napier’s complaint about the lack of opportunity to respond has added substance.
[31] In the result, I consider it was procedurally unfair in a summary judgment context to admit the second affidavit into evidence without affording Mr Napier an opportunity to respond.
Relief
[32] As noted, relief is discretionary. Mr Napier has still not provided independent evidence as to the quality of the car at the time of purchase. He also appears to have failed to take the opportunity to get Landseer to repair the car. But this was a summary judgment proceeding. It is not a process designed to address material issues of disputed fact. I also note that Mr Napier’s option of going to the Motor Vehicle Disputes Tribunal is now, as a consequence of the summary judgment, closed to him. That Tribunal found Mr Napier’s application was an abuse of process, given Judge Harrison’s findings. I therefore consider relief is appropriate.
Result
[33] The present application for judicial review is allowed. The District Court decision granting summary judgment against Mr Napier is set aside. I am minded to refer the matter back for substantive trial or if the parties agreed to the Motor Vehicles Dispute Tribunal. But, as I have not heard from the parties, I grant them leave to file submissions on relief within 10 working days. Submissions on costs may also be filed, though I note that because Mr Napier was self-represented, costs will be limited to disbursements.
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