Parry v Fassler HC Wanganui CIV 2011-483-97

[2011] NZHC 1375

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CIV 2011-483-97

BETWEEN  RUSSELL PARRY Appellant

ANDMARKUS FASSLER Respondent

Hearing:         17 August 2011 (by teleconference) Counsel:   H McDouall for the Appellant

J Waugh for the Respondent

Judgment:      17 August 2011

JUDGMENT OF MALLON J

Introduction

[1]      Mr Fassler brought a civil claim for damages against Mr Parry alleging that Mr Parry had converted his property (beehives) which were on Mr Parry’s land.  His claim was heard in the District Court and a judgment in the sum of $22,000 was given  in  his  favour.    Mr  Parry  has  appealed  that  judgment  and  his  appeal  is scheduled to be heard by the High Court on 29 August 2011.   Before me is an application by Mr Parry for leave to file an amended notice of appeal.  Having heard from counsel this morning I granted that leave.  I now set out my reasons.

Background

[2]      Mr Fassler alleged that pursuant to oral agreements he moved his beehives on to Mr Parry’s land with the intention of making Manuka honey and with an arrangement as to how the profit would be split.  Mr Fassler also alleged that he had

loaned equipment to Mr Parry to assist Mr Parry in starting his own beehives.

PARRY V FASSLER HC WANG CIV 2011-483-97 17 August 2011

[3]      The relationship between the parties deteriorated.  Mr Fassler’s claim alleged that he demanded the return of his property but Mr Parry refused to do so.  Pursuant to an injunction granted in August 2009, some of Mr Fassler’s property was returned to him.  However he claimed loss arising from damage to the property returned, loss from property not returned and loss of income.

[4]      Mr  Parry’s  statement  of  defence  contended  that  Mr  Fassler  had  left  the property in his care, that Mr Fassler had not requested that the property be returned to him, that a trespass notice he had served on Mr Fassler did not prevent someone else being nominated to obtain the return of the property, and that Mr Parry had cared for the property and Mr Fassler would have lost all his hives had Mr Parry not done so.

[5]      The trial of the claim took place in June 2010.  Mr Fassler was represented by counsel.  Mr Parry represented himself.  The District Court judgment was delivered on 15 March 2011.  Mr Parry instructed his present counsel either the day before or on the morning of the last day for filing an appeal against that judgment.

[6]      The notice of appeal was filed on 12 April 2011. The notice set out 6 grounds of appeal which all related to alleged errors in the quantification of damages.  The relief sought was that the District Court’s judgment be overturned.  A notice of cross appeal was filed on 5 May 2011.  The cross appeal also concerned alleged errors in the quantification of damages.   The relief sought in the cross appeal included that “the District  Court Judgment  with  regards to  liability as  a result  of the tort  of conversion being proved be upheld.”

[7]      Pursuant to timetable orders made on 9 May 2011, written submissions in support of the appeal were to be filed by 14 June 2011.  The failure to do so led to a judicial telephone conference on 2 August 2011.   At this telephone conference, counsel for Mr Parry advised that he intended to seek leave to amend the notice of appeal  to,  amongst  other  things,  appeal  on  the  finding  of  liability.    The  Judge directed that the application was to be filed that day and the supporting submissions were to be filed the next day.

[8]      The written submissions for the substantive appeal were filed on behalf of Mr Parry on 2 August 2011.  They included submissions on the points of appeal for which leave was sought.  An application for leave was also filed that day and the supporting submissions were filed on 3 August 2011 in accordance with the Judge’s directions.

Proposed amendments to grounds of appeal

[9]      The notice of appeal contained six grounds of appeal.   Leave is sought to amend one of the existing 6 grounds, to delete one of the existing 6 grounds, and to add three additional grounds.  Of these proposed amendments, Mr Fassler opposes leave being granted only in respect of two of the additional grounds.   Those two proposed additional grounds of appeal are:

(a)      His Honour erred in fact by finding that there was a conversion of the hives to the Appellant’s own use by finding that the Appellant’s visit to the Pohangina Valley Extraction plant occurred after the Trespass Order  was  served,  where  it  was  acknowledged  to  have  occurred before that time.

(b)      His Honour erred in fact by finding that there was sufficient demand for the chattels and refusal to return the chattels demanded on which to base an action for conversion; not referring to the email of 14 May

2009 which demanded the Appellant not touch the hives, nor the efforts made by the Appellant to return the hives to the Respondent.

[10]     Leave should be granted where it is in the interests of justice to do so.  It will be in the interests of justice if the proposed amendment will enable the real issues between the parties to be resolved and there is no sufficient prejudice to the opposing party in allowing the late amendment to be made.

[11]     Counsel for Mr Fassler acknowledges that the amendment has been sought late and that this is against the background of his default in respect of the filing of written submissions for the substantive appeal.  He says that the delay has arisen due

to a combination of factors involving the late stage at which he was instructed, an overload of work and some health issues.

[12]     Counsel  for  Mr  Fassler  says  that  the  Judge  relied  on  Mr  Parry  serving Mr Fassler with a trespass notice “and the consequential actions in delivering to Waireka Honey...which clearly belonged to Fassler” (my emphasis) as establishing that the Mr Parry dealt with the property inconsistently with Mr Fassler’s rights as owner.  He says that in relying on this, the Judge made a factual error because the delivery of the honey there referred to occurred prior to service of the trespass notice.  More generally counsel for Mr Parry says that the Judge was wrong to find that there had been sufficient evidence that Mr Fassler had demanded the return of his property, which he says is relevant to whether Mr Parry’s actions amounted to a conversion.

[13]     The amendments are opposed in part because counsel for Mr Fassler says that there was at no stage any real issue between the parties as to liability.  It is said that Mr Parry’s only defence was that any person other than Mr Fassler could have had access to Mr Parry’s land to obtain Mr Fassler’s property.  In my view, however, the statement of defence more broadly denied conversion, and specifically alleged that Mr Fassler had left the property in Mr Parry’s care and that Mr Fassler had “never asked or requested the return of his Hives.”  It was therefore for Mr Fassler to prove that the elements of the tort were made out on the evidence.   Counsel for Mr Fassler does not contend that the evidence presented at the District Court in support of his case would have been any different on the issues which Mr Parry now seeks to include on the appeal.

[14]   Counsel for Mr Fassler submits that prejudice has occurred because he consented to a stay of the judgment on the basis that only quantum was being raised on the appeal.  However, although the specific grounds in the notice of appeal related only to quantification, the notice sought to overturn the judgment and the cross appeal sought to uphold the finding of liability.   More importantly Mr Fassler’s position is protected, notwithstanding the stay, because he has in place a charging order over Mr Parry’s property and he will be entitled to post judgment interest if the judgment is upheld on appeal.

[15]     The only prejudice therefore to Mr Fassler is that additional work will be required of his counsel to respond to the new points.  Such prejudice may be relevant to costs but is not of a kind that is sufficient to prevent Mr Parry from having real issues considered on the appeal.   In my view the new issues being raised are not complex  and  are  relatively narrow  and  there  is  sufficient  time  for  Mr Fassler’s counsel  to  respond  to  them  before  the  hearing  on  29  August  2011.    This  is particularly so given that Mr Parry’s submissions on these points have already been filed and Mr Fassler’s submissions on all the other grounds of appeal have been prepared.

Result

[16]     Leave to  amend the notice of appeal,  as  per paragraph  3  of Mr  Parry’s submissions dated 3 August 2011, is accordingly granted.  Mr Fassler’s submissions on the new grounds of appeal are to be filed and served by 26 August 2011.  The issue of costs can be dealt with when costs in relation to the substantive appeal are considered.

Mallon J