Ready Mark Limited v Grant - [2012] NZHC 970

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-008264 [2012] NZHC 970

BETWEEN READY MARK LIMITED Plaintiff

ANDJILL GRANT Defendant

Hearing: 2 May 2012

Appearances: T A Chubb for Plaintiff
M W Vickerman for Defendant

Judgment: 9 May 2012

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 9 May 2012 at 4:00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

Solicitors: Foley & Hughes, P O Box 6829, Auckland 1141
Fax: (09) 379-9182
Dyer Whitechurch, P O Box 5547 Wellesley Street, Auckland 1141
Fax: (09) 309-6389

Counsel: T A Chubb, P O Box 1128 Shortland Street, Auckland 1140
Fax: (09) 368-1025 – Email: tracy@tracychubb.co.nz
M W Vickerman, P O Box 105270, Auckland 1143
Fax: (09) 30- 6973

READY MARK LTD V GRANT HC AK CIV-2010-404-008264 [9 May 2012]

[1] Ready Mark Limited (RML) applied unsuccessfully for summary judgment

against Jill Grant for the cost of building work carried out to Ms Grant’s property in

2005.[1] It has appealed Associate Judge Christiansen’s refusal of the summary judgment application. Associate Judge Christiansen also struck out RML’s statement of claim which included two other causes of action.[2] However, Venning J reinstated the claim for the building work on a review of that decision.[3] Ms Grant seeks leave to appeal Venning J’s decision.

[1] Ready Mark Ltd v Jill Grant HC Auckland CIV-2010-404-008264 17 June 2011.

[2] The statement of claim asserted three causes of action but onl the claim for building work is still being pursued.

[3] Ready Mark Ltd v Jill Grant HC Auckland CIV-2010-404-008264, 18 November 2011.

[2] Under s 26P(1AA) Judicature Act 1908 a decision on review of an Associate Judge’s decision is final unless this Court gives leave (or refuses leave but the Court of Appeal gives special leave). There is no specific indication as to the basis on which a leave application is to be determined but it seems to be generally accepted[4]
that the principles are those set out in Waller v Hider.[5] These are that the proposed

appeal must raise some question or law or fact capable of bona fide and serious argument or involves some interest (public or private) of sufficient importance to outweigh the cost and delay of a further appeal. Generally leave will be less readily granted where the proposed second appeal relates to an interlocutory matter which does not determine the rights and liabilities of the parties. The over-arching principle, however, must be the requirements of justice.

[4]See e.g. Gregory v Gollan HC Auckland CIV-2005-404-3485, 4 July 2007.

[5] Waller v Hider [1998] 1 NLZR 412.

[3] The substantive issue between the parties is whether RML’s pursuit of this debt is an abuse of process. RML is controlled by Ms Grant’s former husband, John Grant. Ms Grant maintains that the debt fell within the overall determination of relationship property issues by the Family Court.[6]

[6] Family Court North Shore, 13 July 2010.

[4] In his decision Judge Ryan was…

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: [2012] NZHC 970
Decision Date: 9 May 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Ready Mark Limited (RML) appealed the refusal by Associate Judge Christiansen of their application for summary judgment against Jill Grant. The core issue was whether RML’s pursuit of a debt for building work carried out in 2005 constituted an abuse of process. Ms Grant contended that the debt had already been settled in the context of relationship property issues by the Family Court, while RML argued that the debt remained valid. The case also involved a review of the decision to reinstate the claim by Venning J, which led to Ms Grant seeking leave to appeal Venning J's decision.

The substantive legal issue was whether the debt fell within the scope of the Family Court's determination of relationship property issues. Ms Grant argued that the debt was effectively irrecoverable as it had been considered in the valuation of the trust entities and that allowing RML to pursue it would amount to an abuse of process. In contrast, RML maintained that the Family Court's decision did not affect the status of the debt. The court evaluated whether the proposed appeal met the criteria for leave to appeal, focusing on whether it involved a question of law or fact capable of serious argument or an interest of sufficient importance to outweigh the costs and delay of a further appeal.

Ultimately, the court found that the Court of Appeal had the power to strike out the claim if it found it untenable, even without an intervening appeal from Venning J's decision. Since the core issue regarding the debt's status was already before the Court of Appeal in the context of RML's appeal, there was no need for an additional appeal from Venning J’s decision. The application for leave to appeal was therefore refused. Costs were reserved pending the outcome of the appeal.

Orders