Prestige Building Removals Limited v Vogel

[2023] NZHC 1815

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-419-000209

[2023] NZHC 1815

BETWEEN

PRESTIGE BUILDING REMOVALS LIMITED
Applicant

AND

SHELLEY LYNN VOGEL and BRET VOGEL

Respondent

Hearing:

On the papers

Counsel:

R A Weir for Applicant

A C N Fuiava for Respondent

Judgment:

12 July 2023

JUDGMENT OF ANDREW J

[Leave to appeal to Court of Appeal]

This judgment was delivered by Justice Andrew on 12 July 2023 at 3.00 pm

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date …………………………

PRESTIGE BUILDING REMOVALS LTD v VOGEL [2023] NZHC 1815 [12 July 2023]

Introduction

[1]    This is a dispute about a relocation contract for a transportable home owned by the respondents, the Vogels. At issue is the interpretation of the phrase “proper access” under cl 15 of this contract (i.e. access to the Vogel’s site to commence relocation). The relocation involved transporting the Vogel’s house across adjacent third-party private land, namely the Maraetai forest. The applicant, Prestige Building Removals Ltd,1 maintains that “proper access” required the Vogels to obtain permission from the owners of the forest and says they have not done so.

[2]    In my judgment of 1 March 2023,2 I dismissed an application by Prestige under cl 5(1)(c) of schedule 2 of the Arbitration Act 1996 for leave to appeal the arbitral award of Mr O’Neill, barrister. Mr O’Neill had awarded damages of $163,012.88 to the Vogels, together with costs and disbursements of $75,140.64.

[3]    In seeking leave to appeal Mr O’Neill’s award on the grounds of material error of law, Prestige claimed that Mr O’Neill did not correctly interpret the meaning of “proper access” under cl 15 of the contract. It argued that Mr O’Neill had failed to address the critical requirement of permission of owners of the forestry land.

[4]    Prestige now makes an application under cl 5(5) of schedule 2 of the Arbitration Act for leave to appeal my judgment of 1 March 2023 to the Court of Appeal. The critical issue I must determine is whether the proposed appeal raises a question of law capable of bona fide and serious argument in a case of sufficient importance to outweigh the cost and delay of the further appeal.

Factual background

[5]I adopt [6]–[12] of my earlier judgment of 1 March 2023.

[6]The disputed cl 15 of the relocation contract reads:

THAT the purchaser will provide full and proper access to his site and will remove any obstacles, including fences, hedges and trees, to allow the transportation of the building, and will obtain all necessary consents for access through adjoining properties, and indemnifies the contractor and its agents against any claim whatever arising through the transportation of the building through the property of others.

1      Prestige.

2      Prestige Building Removals Ltd v Vogel [2023] NZHC 359.

[7]    On 4 March 2021, Mrs Vogel emailed Prestige and advised that the relocation of the house required access through the Maraetai forest. She confirmed to Prestige that she (the Vogels) had approval for that and would manage things at their end.

[8]    At the arbitration, Mrs Vogel gave evidence that she had obtained permission for Prestige to access the forestry road with a truck and house trailer for the removal. This was obtained from Mr Callum Wilson, president of the Pohutakawa Coast Bike Club Incorporated.3 PCBC and Whitford Forest Holding Company Ltd,4 the owner of the forest, are parties to the Whitford Forest Access Licence Agreement. Clause 8 of this agreement allows PCBC to enter the forest area for mountain biking on roads, tracks and agreed trails.

Relevant legal principles

[9]    The Court of Appeal in Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd,5 set out the criteria for leave under cl 5(5) of schedule 2 of the Arbitration Act. It approved of the test established in Cooper v Symes.6 The Court held:7

(a)The appeal must raise some question of law … capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.

(b)Upon a second appeal, the Court of Appeal is not engaged in the general correction of error. Its primary function is then to clarify the law and determine whether it has been properly construed and applied by the Court below.

(c)Not every alleged error of law is of such importance either generally or to the parties as to justify further pursuit of litigation that has been twice considered and ruled upon by a Court.

Analysis

[10]   In the earlier proceeding before me (giving rise to my judgment of 1 March 2023), Prestige contended that cl 8 of the forest access licence agreement between

3      PCBC.

4      Whitford Forest Holding.

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

6      Cooper v Symes (2001) 15 PRNZ 166 at [12]; see also Northash v Zeff Farms Ltd [2022] NZCA 471.

7      Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd, above n 3, at [33].

PCBC and Whitford Forest Holding granted limited access to the forest for the purpose of mountain bike riding. Prestige contended that, having regard to cl 8 and its limited purpose, the finding of Mr O’Neill that “proper access” under cl 15 of the relocation contract was granted was a perverse finding.

[11]   In a 2003 report on the Arbitration Act 1996, the Law Commission expressed the following view:8

We are of the view that in the context of an appeal from an arbitral award it would be inappropriate to include a perverse finding of fact within the term “error of law”.

[12]   The Law Commission recommended an amendment to the Arbitration Act 1996 to expressly exclude perverse findings of fact, or findings based on no evidence, from being an “error of law”.

[13]   The Arbitration Amendment Act 2007 inserted cl 5(10) of schedule 2 into the 1996 Act. That provision reads:

For the purposes of this clause, question of law –

(a)includes an error of law that involves an incorrect interpretation of the applicable law (whether or not the error appears on the record of the decision); but

(b)does not include any question as to whether –

(i)the award or any part of the award was supported by any evidence or any sufficient or substantial evidence; and

(ii)the arbitral tribunal drew the correct factual inferences from the relevant primary facts.

[14]   In my judgment, I found that it was not necessary for me to reach any concluded view on whether the 2007 amendment expressly excluded an appeal on the grounds of a perverse finding of fact. I held: “It seems likely that it does, but I do not decide the point.”9 I further held:

[39]      I find that there is no arguable case that the decision of Mr O’Neill on the question of proper access was perverse. He had regard to all the evidence. He did not and was not required to confine his analysis to cl 8 of the forest access licence agreement. He reached the conclusion that the Vogels did

8      Law Commission Improving the Arbitration Act 1996 (NZLC R83, 2003) at [122].

9      Prestige Building Removals Ltd v Vogel, above n 2, at [39].

provide proper access and met their obligations under cl 15 of the agreement with Prestige.

[40]There is no merit to the “perverse finding of fact” ground of appeal.

[15]   The grounds advanced by Prestige in the present application for leave to appeal to the Court of Appeal are:

(a)There is a bona fide and serious question of law for consideration by the Court of Appeal, namely whether I erred in law by finding that it was not necessary for me to reach any concluded view that the Arbitration Amendment Act 2007 expressly excludes an appeal on the grounds of a perverse finding of fact;

(b)That the findings of the arbitrator, Mr O’Neill, were perverse in that the Vogels were required to provide proper access which, in terms of cl 15 of the relocation contract between the parties, was not provided.

[16]   It may be, as Mr Weir for Prestige submits, that whether the 2007 amendment to the Arbitration Act excluded perverse findings of fact is a question of law of some general public importance. However, I reject the contention that my failure to address that issue raises a live question of law for the Court of Appeal capable of bona fide and serious argument. In my judgment, I concluded that there was no need for this legal issue to be determined because there was no proper evidential or factual basis for concluding that the perverse standard had been met.

[17]   The contention that I erred when rejecting Prestige’s claims that Mr O’Neill’s findings were perverse likewise fails to meet the threshold of a question of law capable of bona fide and serious argument. My conclusion that Mr O’Neill’s findings were not perverse was dependent on a number of factual findings which could not credibly be said to amount to a perverse finding. As noted above, I held that Mr O’Neill had regard to all the evidence and was not required to confine his analysis to cl 8 of the forest access licence agreement.

[18]   The “perverse” threshold (even it does amount to a question of law) is a high one. That is reinforced by the definition of “question of law” in cl 5(10) of schedule

2. That definition expressly excludes from “a question of law” any arbitral award that is not supported by any evidence or any sufficient or substantial evidence. It also

excludes from such definition the question of whether the arbitral tribunal drew the correct factual inferences from the relevant primary facts.

[19]   I find that Prestige has failed to establish that its proposed questions of law are capable of bona fide and serious argument. I also conclude that they are not of sufficient importance to outweigh the cost and delay of a further appeal. The amounts at issue here are not significant and all issues have been comprehensively argued and determined. There is a clear need to bring all matters to a final conclusion.

Result

[20]   The application by Prestige for leave to appeal my decision of 1 March 2023 to the Court of Appeal is dismissed.

[21]   As to costs, I am of the preliminary view that having succeeded the respondents, the Vogels, are entitled to costs and on a 2B basis plus disbursements. If costs cannot be agreed, then the parties are to file memoranda (no more than three pages) within 14 days.

[22]   Upon receipt of costs submissions (or notification of resolution) I will also determine the outstanding costs issue in relation to my earlier judgment of 1 March 2023.

Andrew J