Orlov v ANZA Distributing (NZ) Ltd (in liq) - [2011] NZSC 28

For a Court ready (fee required) version please follow this link

IN THE SUPREME COURT OF NEW ZEALAND

SC 136/2010
[2011] NZSC 28

BETWEEN EVGENY ORLOV
Applicant

AND ANZA DISTRIBUTING (NZ) LIMITED (IN LIQUIDATION)
First Respondent

AND USG INTERIORS PACIFIC LIMITED
Second Respondent

Court: Elias CJ, McGrath and William Young JJ

Counsel: Applicant in person
T L Clarke for First Respondent (abiding the decision of the Court)
M R Crotty for Second Respondent (abiding the decision of the Court)

Judgment: 29 March 2011

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.
BThere is no order for costs.

REASONS

In the initial litigation, Mr Orlov had acted as solicitor for a Mr and Mrs Misbin. Cooper J awarded the other parties to that litigation, namely the liquidators of ANZA Distributing New Zealand Ltd USG Interiors Pacific Ltd, costs against Mr Orlov and Mr and Mrs Misbin on a joint and several basis.[1]
[1]ANZA Distributing (NZ) Ltd (in liq) v USG Interiors Pacific Ltd (No 2) HC Auckland CIV-2007-404-3474, 18 September 2009 at [53]–[55].
Mr Orlov filed an appeal against that order but there was then a global settlement between all the parties, including Mr Orlov. Under this settlement, all financial issues were resolved and a cross-appeal against Mr Orlov was abandoned by ANZA and USG. Those parties, however, agreed that Mr Orlov could pursue his appeals against the costs judgment and a subsequent judgment declining a stay:[2] this for the purpose of allowing Mr Orlov to challenge the correctness in law of those decisions and the factual finding that he had not met an appropriate standard of competence. The liquidators and USG agreed not to oppose Mr Orlov’s appeal.
[2]ANZA Distributing New Zealand Ltd (in liq) v USG Interiors Pacific Ltd HC Auckland CIV-2007-404-3474, 20 November 2009.
There can be no doubt that this agreement meant that Mr Orlov’s appeal had become moot.
The Court of Appeal indicated a willingness to hear the appeal notwithstanding it being moot but this was subject to conditions, the most significant of which was that Mr Orlov would be required to fund a contradictor. This he was not prepared to do. The upshot was that his appeal was struck out.[3] Mr Orlov now seeks leave to appeal against the striking out of his appeal.
[3] See Orlov v ANZA Distributing New Zealand Ltd (in liq) [2010] NZCA 536.
The position as to mootness is discussed in the judgment of this Court in Gordon-Smith v R[4] in these terms:
[14] The traditional position taken in New Zealand has been that the courts will not hear an appeal “where the substratum of the … litigation between the parties has gone and there is no matter remaining in actual controversy and requiring decision”. This approach was followed in accordance with a principle referred to in Sun LifeAssurance Co of Canada v Jervis,[5] where Lord Simon LC said:[6]
[I]t is an essential quality of an appeal fit to…

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.

Keep reading for free

Create a free CaseChat account to read Orlov v ANZA Distributing (NZ) Ltd (in liq) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] NZSC 28
Decision Date: 29 March 2011

CaseChat Overview and Summary

Evgeny Orlov sought leave to appeal against the striking out of his appeal against the costs awarded against him. The Court of Appeal had dismissed the appeal as moot, as all parties had settled and the liquidators and USG agreed not to oppose the appeal but only to provide a contradictor if necessary. The Supreme Court was asked to determine whether it should grant leave to appeal. The legal issues were whether the appeal was moot and if the public interest warranted hearing it. The Supreme Court noted the traditional approach of not hearing appeals where the litigation's substratum has gone. However, in certain cases, particularly those involving public law, the Court may hear moot appeals if there is a good reason in the public interest. The Court held that the appeal was moot as there was no longer a matter in actual controversy between the parties. The Court also held that the appeal did not raise a public law issue. Instead, it involved the application of established principles to particular facts. The Court held that the proposed appeal did not meet the criteria for an exception to the general policy of restraint by appellate courts in addressing moot questions. The Court dismissed the application for leave to appeal.

Orders