Ng v Harkness Law Limited - [2015] NZCA 61

IN THE COURT OF APPEAL OF NEW ZEALAND

CA275/2014
[2015] NZCA 61

BETWEEN

ADRIAN HWEE KIAT NG AND ALICIA SOCK HOON GO
First Appellants

MATTHEW HSUN YEAN LIM
Second Appellant

AND

HARKNESS LAW LIMITED
First Respondent

JOHN RENWICK HARKNESS
Second Respondent

Court:

Randerson, Winkelmann and Venning JJ

Counsel:

S H Barter for Appellants
T Gee for Respondents

Judgment:

(On the papers)

11 March 2015 at 10:15 am

JUDGMENT OF THE COURT

AAn extension of time to apply for a review of the Registrar’s decision of 30 June 2014 in relation to security for costs is granted but the application is declined.
BThe respondents must pay costs to the appellants for a standard application on a band A basis with usual disbursements.
CDirections in respect of the application by the appellants to adduce further evidence on appeal are given in terms of [18] of this judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

The appellants appeal against an interim judgment of Associate Judge Bell given on 29 April 2014.[1]
[1]Ng v Harkness Law Ltd [2014] NZHC 850.
The respondents applied for a stay of the appeal on the grounds that the appellants had not paid outstanding High Court costs amounting to $16,816. Alternatively, the respondents sought an order for increased security for costs.
Immediately prior to the hearing of the application, the appellants paid the outstanding High Court costs. Accordingly, the respondents did not pursue the application for stay of the appeal.
As recorded in my minute of 17 February 2015, it is appropriate to treat the respondents’ alternative application as a review of the Registrar’s decision of 30 June 2014 declining to order increased security for costs. Similarly, I directed that the alternative application could be treated as an application for extension of time for the purposes of the review. The parties agreed that the application for review may be dealt with on the papers. Further submissions on the review have been received.

Brief facts

The appellants reside in Singapore. They paid substantial funds to developers towards the cost of acquisition of residential lots in a proposed development at Albany, Auckland. The appellants say that the payments they made were paid into the trust account of the respondent solicitors who were acting on behalf of the developers. The companies involved in the development are now in liquidation. The appellants allege misleading or deceptive conduct under the Fair Trading Act 1986 on the part of the respondents. Associate Judge Bell characterised the appellants’ claim as an allegation that the respondents were liable as accessories to misleading conduct by the developers.[2]

Judgment in the High Court

[2]At [38].

In the judgment under appeal, Associate Judge Bell struck out the cause of action against the respondents under the Fair Trading Act and made a declaration that the claim for breach of that Act could not succeed. In a subsequent judgment delivered on 15 July 2014, which is not included in this appeal, Associate Judge Bell struck out a…

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.

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Details

Case: [2015] NZCA 61
Decision Date: 11 March 2015 at 10:15 am

CaseChat Overview and Summary

In the case of Ng v Harkness Law Limited, the appellants, Adrian Hwee Kiat Ng and Alicia Sock Hoon Go, along with the second appellant, Matthew Hsun Yean Lim, appealed against an interim judgment given by Associate Judge Bell on 29 April 2014. The respondents, Harkness Law Limited and John Renwick Harkness, sought to stay the appeal due to unpaid High Court costs, or alternatively, increased security for costs. The appellants subsequently paid the outstanding costs, leading the respondents to not pursue the stay application. Instead, the alternative application was treated as a review of the Registrar's decision declining to order increased security for costs, and the Court of Appeal heard the matter on the papers.

The legal issues before the Court of Appeal were whether the Registrar's decision to not order increased security for costs should be reviewed and, if so, whether an extension of time for such a review should be granted. The appellants argued that no basis existed for the review, and the respondents contended that the appeal had little prospect of success, the appellants had no assets within New Zealand's jurisdiction, and the standard costs would not adequately protect them.

The Court of Appeal held that no basis existed for reviewing the Registrar's decision, as there was no evidence that the appellants were impecunious, and they had paid both the standard security for costs and the costs awarded in the High Court. The appeal was not demonstrably hopeless, and the merits could not be assessed at that stage. The Court of Appeal granted an extension of time for the review application but declined the application for the reasons provided. The respondents were ordered to pay costs to the appellants for a standard application on a band A basis with usual disbursements.

The Court of Appeal also directed that the application by the appellants to adduce further evidence on appeal should be dealt with at the hearing of the appeal on 11 May 2015. The Court issued directions for the respondents to inform the Registry by 27 March 2015 whether they opposed the application, and if so, to file and serve a notice of opposition and any opposing affidavits by the same date. The submissions in respect of the application were to be included in the substantive submissions on the merits of the appeal, with the overall submissions not to exceed 30 pages on each side.

Orders