New Zealand Bloodstock Finance & Leasing Ltd v Jones
[2020] NZHC 1633
•9 July 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-1822
[2020] NZHC 1633
BETWEEN NEW ZEALAND BLOODSTOCK FINANCE & LEASING LIMITED
Plaintiff
AND
GREGORY JOHN JONES
Defendant
Hearing: 8 July 2020 Appearances:
F A King for the plaintiff G J Jones in person
Judgment:
9 July 2020
JUDGMENT OF JAGOSE J
[Leave to appeal and stay]
This judgment was delivered by me on 9 July 2020 at 11.00am.
Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Party:
McKenna King Limited, Hamilton G J Jones, Auckland
NEW ZEALAND BLOODSTOCK FINANCE & LEASING LTD v JONES [2020] NZHC 1633 [9 July 2020]
[1] On 20 and 25 May 2020, I deferred determination of Mr Jones’ interlocutory applications dated 19 and 25 May 2020 for at or after the substantive hearing.1
[2] My judgment of 5 June 2020 dismissed the applications. I gave judgment against Mr Jones on NZ Bloodstock’s claim dated 3 September 2019,2 for some
$430,000 in unpaid loans (plus interest and solicitor-client costs).
[3] Mr Jones has appealed my judgment to the Court of Appeal. Mr Jones now seeks leave to appeal against my decisions on his interlocutory applications, and also to stay execution of my judgment.3
Recusal
[4] In chambers at the outset of the hearing for leave and stay, Mr Jones sought my recusal on grounds of my statement in the judgment “Mr Jones does not dispute such liability …”.4 Mr Jones said that was wrong, and the error constitutes a conflict between us such as justified my recusal. After hearing from Mr King, and considering this Court’s recusal guidelines, I declined to recuse myself, with reasons to follow.
[5] These are those reasons. Even if I erred, error alone is not grounds for recusal. Judges are confronted with contended errors in their judgments as a matter of course. Mr Jones’ presence before me as both an officer of the Court and an unrepresented litigant may make his contention of my error here a more personally difficult or delicate proposition for him, but it does not give rise to a “real and not remote possibility”,5 in the circumstances, “a fair-minded, fully informed observer” would reasonably apprehend I “might not bring an impartial mind to the resolution of the question” I am required to decide.6 Neither is there any “logical and sufficient connection” between my contended error and any reasonable apprehension of my possible partiality.7 That is, after all, the essence of the judicial oath: “I will do right
1 New Zealand Bloodstock Finance & Leasing Ltd v Jones CIV 2019-404-1822, 20 and 25 May 2020 (minutes).
2 New Zealand Bloodstock Finance & Leasing Ltd v Jones [2020] NZHC 1233.
3 Mr Jones’ application was amended on 3 July 2020 to include specific reference to s 56(3) of the Senior Courts Act 2016 and related caselaw. No objection is taken to the belated amendment.
4 At [37].
5 Recusal guidelines, High Court of New Zealand, 12 June 2017 at 1.3.
6 At 1.2.
7 At 1.4.2.
to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will”.
[6] Absent grounds for recusal, I am obliged “to sit on any case allocated” to me,8 as are the present applications. I turn to them.
Leave to appeal
[7] Section 56(3) of the Senior Courts Act 2016 prohibits appeals of orders or decisions on interlocutory applications in civil proceedings without this Court’s leave. The object of requiring such leave is:9
… to limit the cases which may go on appeal in the interests of finality of litigation and the workload of the High Court, while preserving the integrity of the law and the interests of justice.
[8] The Court of Appeal recently endorsed this Court’s approach to leave as a “filtering mechanism”,10 noting its own approach to be similar:11
… leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.
There is no reason for this Court’s approach to be seen any differently.
[9]Mr Jones’ applications respectively were:
(a)to dismiss or stay NZ Bloodstock’s summary judgment application; and
(b)to stay NZ Bloodstock’s application and adjourn the proceeding, pending hearing of his appeal to the Court of Appeal against my refusal earlier to stay or dismiss NZ Bloodstock’s summary judgment application.
8 At 1.1.
9 Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.
10 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6], citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
11 At [7], citing Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17]; and Meates v Taylor (1992) 5 PRNZ 524 (CA) at 526. Similarly, Fairway Holdings Ltd v McCullagh [2018] NZCA 605 at [11]–[14]; and McLaren v McLaren [2018] NZCA 570 at [3]–[5].
[10] My reasons for dismissing Mr Jones’ interlocutory applications were the former:12
… [did not provide] grounds then to dismiss or stay NZ Bloodstock’s summary judgment application, all of which was capable of being raised by [Mr Jones] in opposition to NZ Bloodstock’s necessary contention he ‘had no defence’ to its claims;
and, on the latter:13
I remained unwilling to stay the application or adjourn the proceeding, determination of which should continue to depend on NZ Bloodstock’s ability to discharge its onus to satisfy me Mr Jones ‘had no defence’ to its claims, in opposition to which Mr Jones remained able to argue for its unfair or unjust determination in light of his intended cross-claims and proposed evidence.
[11] Mr Jones says my failure to determine the applications in advance of the hearing was unfair and unjust. By not doing so, the hearing proceeded on an uncertain evidentiary basis, prejudicially to Mr Jones’ interests. With time and opportunity to adduce the sought evidence, I should have concluded summary judgment inappropriate, for the matter go to trial.
[12] That is to presume Mr Jones’ applications would have been successful. But I considered:14
… “what the witnesses may have to say is less material in opposition than the availability of a defence”; i.e., “reasonable particulars of the matters which he claims ought to be put in issue”.
In that respect, ultimately I held “NZ Bloodstock’s claim for judgment raises nothing justifying trial; neither does anything in Mr Jones’ opposition to its summary determination”.15
[13] Particularly in light of Mr Jones’ appeal against my judgment, it is unclear what is served by granting leave to appeal my decisions on the interlocutory applications. If their determination may have had substantive consequences, that is open to being
12 At [20].
13 At [22].
14 At [20] (footnotes omitted).
15 At [38].
addressed on the appeal. Without substantive consequences for the case, Mr Jones, or as a matter of precedent, leave should not be granted.
[14] Mr Jones wishes to argue the appeals on the interlocutory applications separately, without regard for what is said in my judgment, so the Court of Appeal could “roll the clock back” to the time I first considered Mr Jones’ former application on 20 May 2020. When I suggested that was at odds with the express determination “to prosecute the appeal as soon as possible”, he said he meant all appeals should be heard on the same day, in the order he sought.
[15] But, if I refuse leave, the Court of Appeal nonetheless may grant it.16 And, even if leave again is refused, “nothing … prevents any point raised in the application for leave to appeal from being raised in an appeal against the substantive High Court decision”.17 Granting leave permits pointless additional effort and expense on appeal.
[16]I will refuse Mr Jones leave to appeal.
Stay
[17] Rule 12(3) of the Court of Appeal (Civil) Rules 2005 entitles “the court appealed from” to order “a stay of execution of the decision” pending determination of the appeal. In doing so, I am to weigh NZ Bloodstock’s right to the fruits of its judgment against “the need to preserve the position in case the appeal is successful”,18 “where it can be fairly achieved, to arrange matters … to do justice between the parties, whatever the outcome of the appeal may be”.19
[18]Factors to be taken into account include:20
(a) Whether the appeal may be rendered nugatory by the lack of a stay;
(b) The bona fides of the applicant as to the prosecution of the appeal;
16 Senior Courts Act 2016, s 56(5).
17 Section 56(6).
18 Duncan v Osborne Buildings Ltd (1992) 6 PRNZ 85 (CA) at 87.
19 New Zealand Insulators Ltd v ABB Ltd (2006) 18 PRNZ 459 (CA) at [13], citing Minnesota Mining & Manufacturing Co v Johnson & Johnson Ltd [1976] FSR 139; [1976] RPC 671 (CA).
20 Keung v GBR Investment Ltd [2010] NZCA 396 at [11], citing Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd [1999] 3 NZLR 239, (1999) 13 PRNZ 48 (HC) at [9].
(c) Whether the successful party will be injuriously affected by the stay;
(d) The effect on third parties;
(e) The novelty and importance of questions involved;
(f) The public interest in the proceeding; and
(g) The overall balance of convenience.
The apparent strength of the appeal is an additional factor.21
[19]Mr Jones says:
Should the Plaintiff seek to execute any judgment I will not be in a position to make payment for that sum immediately. As a result, its payment could result in a lack of liquidity which would in turn impact on my ability to practice law and to derive income. The nature of my financial affairs is such that the detriment caused by this occurring could be irretrievable.
The contentions are not substantiated, but I take such personal assertions to be made with regard for Mr Jones’ “overriding duty as an officer of the court”. Thus I note the speculative nature of his contentions.
[20] For NZ Bloodstock, Mr King says continual failure to repay loans places an unnecessary financial strain on its business, “at a particularly difficult economic time for the racing industry post Covid-19 lockdown”, Mr Jones’ failure having adverse effect on other of its loans to racing industry personnel. That, too, is not substantiated. The former two contentions are statements of the obvious; the last is not established.
[21] A stay of execution would be to prevent NZ Bloodstock from enforcing my judgment. But enforcement of my judgment would not render Mr Jones’ appeal nugatory. It would remain to be determined and, if successful, any steps taken in reliance on my judgment reversed. I do not doubt Mr Jones’ bona fides in prosecuting the appeal, as he has stipulated in affidavit evidence and submission. I accept NZ Bloodstock is detrimentally affected by stay of execution, in not being able to obtain the fruits of its judgment (at least, to the extent “immediately” payable by Mr Jones). I disregard the contended effect on third parties, if that is what is claimed
21 At 11, citing Body Corporate No 188529 v North Shore City Council (No 6) HC Auckland CIV- 2004-404-3230, 11 February 2009.
of other “racing industry personnel”. The questions raised on appeal are not novel or important – but entirely case-specific, as to the interrelationship (if any) between Mr Jones’ debt to NZ Bloodstock, and his claims against it – and no public interest in its determination is demonstrated. So far as I can assess it from here, the appeal does not appear strong.
[22] That leaves, essentially the balance of convenience: does it bear harder on NZ Bloodstock to be held out of execution of my judgment until after Mr Jones’ appeal is determined in its favour, than it does on Mr Jones to have my judgment enforced against him if successful on appeal?22 It would be easy to say a corporate entity should have to risk carrying bad debts until final determination of an appeal, if enforcement of the judgment may have detrimental financial impact on an individual appellant. But that is a charter for disregard of liabilities and obligations, which are the source of the financial impact, until all prospects of appeal have been extinguished.
[23] Judgments establish legal rights and obligations thereafter to be met, and “justice between the parties” is to be my touchstone. Without any other factor to tip the balance in Mr Jones’ favour, my judgment should be available for execution.
[24]I will dismiss Mr Jones’ application for stay.
Result
[25] Mr Jones’ amended application dated 3 July 2020 for leave to appeal and stay is dismissed.
Costs
[26] In my preliminary view, costs incurred in opposing Mr Jones’ application do not fall within the advances contract’s and lease’s indemnities. Instead, as the successful party, NZ Bloodstock is entitled to 1B costs and disbursements for steps taken on the appeal, as the appeal was of a straightforward nature occupying a normal
22 By analogy with Wellington International Airport Ltd v Air New Zealand Ltd HC Wellington CIV- 2007-485-1756, 30 July 200, at [4], citing [Cayne] v Global Natural Resources Plc [1984] 1 All ER 225 (CA) at 237.
amount of time. If that is not accepted by the parties, or they cannot otherwise agree, I reserve costs for determination on short memoranda of no more than five pages – annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate – to be filed and served by NZ Bloodstock within ten working days of the date of this judgment, with any response and reply to be filed within five working day intervals after service.
—Jagose J
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