NZSki Limited v Director-General of Conservation

[2015] NZHC 753

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-9681 [2015] NZHC 753

UNDER THE	Arbitration Act 1996
IN THE MATTER OF	an application pursuant to cl 4 of Schedule 2 of the Arbitration Act 1996
BETWEEN	NZSKI LIMITED Applicant
AND	DIRECTOR-GENERAL OF CONSERVATION Respondent

Hearing:	On the papers
Counsel:	N R W Davidson QC and B M Russell for Applicant K Stephen and J Andrew for Respondent
Judgment	17 April 2015

JUDGEMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

4.45 pm on the 17th day of April 2015

Solicitors:           Lane Neave, Christchurch, for Applicant

Crown Law for Respondent

NZSKI LIMITED v DIRECTOR-GENERAL OF CONSERVATION [2015] NZHC 753 [17 April 2015]

[1]      The applicant, NZSki Limited, has applied for leave to appeal against my judgment delivered on 16 December 2014.1  A notice of appeal was filed in the Court of Appeal on 4 February 2015, in the usual form for an appeal against a decision of this Court where there is an appeal as of right.   In filing that, counsel for the applicant had overlooked that my judgment was on a preliminary point of law under cl 4 of sch 2 of the Arbitration Act 1996 (the Act), with the consequence that leave to

appeal is required under cl 4(3).   An application for leave to appeal was filed on

18 February 2015, with an application for an extension of time, which was necessary because the one month timeframe for seeking leave in cl 4(3) had by then expired.

[2]      I subsequently set a timetable agreed by counsel for submissions in support of and in opposition to the applications for leave and an extension of time.  Those submissions have now been received.  I had indicated that I would consider whether an oral hearing was necessary.  I consider it is not.  The issues are well addressed in the written submissions.   There would inevitably be significant further delay in finding hearing time.  In those circumstances, it is best that I deal with the matter on the papers, without an oral hearing.

[3]      Clause 4(3) of sch 2 of the Act does not prescribe any test for the granting of leave to appeal.   Counsel for the applicant refers to Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd, in which the Court of Appeal held the test for an appeal under cl 5 of sch 2 of the Act should be akin to an application for leave to appeal under s 67 of the Judicature Act 1908.2     That involves the well

established test set out in Waller v Hider.3    Counsel for the applicant has addressed

submissions to the questions of whether there is a question of law capable of bona fide argument and whether there is a sufficiently important private interest to be involved.  Counsel for the respondent submits that there is no relevant error of law, that there is no public interest beyond this particular lease, and that the plaintiff’s

submissions as to the commercial significance of the matter are overstated.

1      NZSki Limited v Director-General of Conservation [2014] NZHC 3245.

2      Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591.

3      Waller v Hider [1998] 1 NZLR 412 (CA).

[4]      Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd was concerned with the rights of appeal under cl 5 of sch 2 of the Act.4    That clause is concerned with a second appeal on a question of law arising out of an award.  The test for second appeals in s 67 of the Judicature Act is clearly an appropriate analogy. Clause 4 is concerned with an appeal to the Court of Appeal which is a first appeal, not a second appeal.  The two provisions are accordingly not directly analogous.  I

do not think it is appropriate, in the particular circumstances of this case, to apply the

Waller v Hider test.

[5]      My decision was on a question of law arising in the course of the arbitration. While the question did arise in the course of the arbitration, it has much wider significance between the parties than the particular rent review arbitration to which it is  currently  relevant.    It  affects  the  wider  contractual  arrangement  between  the parties, and the extent of the applicant’s tenure of the land it occupies.  The decision could equally well have been brought before the Court in separate proceedings, under the Declaratory Judgements Act 1908 or in an ordinary action.   If that had been done, the applicant would have had recourse to the Court of Appeal as of right.

[6]      Two considerations, namely that the appeal right sought to be exercised here is a first appeal, which will ordinarily be available as of right, and that the question might equally have arisen in other proceedings where there would have been an appeal as of right, lead me to the conclusion that leave ought to be granted, unless there is some particular circumstance, in the arbitration itself, which weighs against the granting of leave.

[7]      The arbitration is a rent review arbitration.  The period for which the rent is payable will not be affected by a delay in the arbitration.   Any underpayment or overpayment arising from the period between the rent review date and the date of the award will be addressed in accordance with the lease.   Neither party raises any concern that the conduct of the arbitration will be adversely affected by the delay which will arise from an appeal.   In those circumstances, it seems preferable to obtain a final decision on the interpretation of the lease at this stage.  I therefore find

no reason, specific to the arbitration, why leave should not be granted.

4      Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd, above n 2.

[8]      That approach to the issue of leave to appeal makes it unnecessary for me to address the submissions directed to the merits of the appeal.  It is preferable that I do not do so.

[9]      The point that the question could equally have been brought before this Court in proceedings where there would be an appeal as of right is also relevant to the application for an extension of time.  If this was an ordinary appeal, then the original notice of appeal  was  filed within  time.    It  would  be unjust  to  the applicant  if counsel’s oversight as to the correct procedure was to deprive it of its appeal.

[10]     For these reasons, time for applying for leave is extended, and leave to appeal is granted.

“A D MacKenzie J”