RHH Limited v Anderson - [2018] NZHC 2177

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2066 [2018] NZHC 2177

BETWEEN
RHH LIMITED

First Plaintiff

JOSEF CHRISTOPHER ROBERTS Second Plaintiff

AND

SANDRINE ANDERSON First Defendant

HELICE PROPERTIES LIMITED Second Defendant

Hearing: 23 August 2018

Appearances:

K Davenport QC with P Devereux for the Plaintiffs
L Taylor QC with TJG Allan for the Defendants

Judgment:

23 August 2018

JUDGMENT (No.4) OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 23 August 2018 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules.

…………………………………
Deputy Registrar

Solicitors:
Corporate Counsel Limited (Paul Devereux), Parnell, Auckland, for the Plaintiffs
Grove Darlow & Partners (TJG Allan), Auckland, for the Defendants
Haigh Lyon (Ben Molloy), Auckland, for Ms Miriam Roberts
Copy for:
Kate Davenport QC, Auckland, for the Plaintiffs
Les Taylor QC, Wellington, for the Defendants
Robert Hollyman, Barrister, Auckland, for Ms Miriam Roberts, non-party

RHH LIMITED v ANDERSON (No.4) [2018] NZHC 2177 [23 August 2018]

[1] The plaintiffs apply under s 56(3) of the Senior Courts Act 2016 for leave to appeal to the Court of Appeal from my decision of 9 August 2018 refusing them leave under r 7.7 of the High Court Rules 2016 to apply for interrogatories after the close of pleadings date. They filed their application on 17 August. I directed this telephone conference to hear the application. The defendants’ counsel gave oral submissions in opposition.

[2] On 2 August 2018, the plaintiffs filed an application for the defendants to answer interrogatories. That was after the close of pleadings date, 23 July 2018. Leave was required under r 7.7. I declined leave. The plaintiffs propose that the Court of Appeal should not only review my leave decision but should also consider the application for interrogatories. They do not require the defendants to answer all their interrogatories in their application but have cut them down to those which the plaintiffs consider to be crucial to the core issues. If leave to appeal is granted, they hope that the appeal may be heard before a Divisional Court sitting in Auckland next week.

[3] The plaintiffs began this proceeding after the Senior Courts Act 2016 came into force. The transitional provisions under Schedule 5 cl 11 of the Senior Courts Act, which saved rights of review of decisions of associate judges under former s 26P(1) of the Judicature Act 1908, do not apply to this proceeding. Section 27 of the Senior Courts Act gives a right of appeal from any order or decision of an associate judge, but that is subject to the requirement under s 56(3) for leave to appeal from a decision made on an interlocutory application. Under s 4, “interlocutory application”:

(a)means any application to the High Court in any civil proceedings or criminal proceedings, or intended civil proceedings or intended criminal proceedings, for—

(i) an order or a direction relating to a matter of procedure; or

(ii)in the case of civil proceedings,…

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: [2018] NZHC 2177
Decision Date: 23 August 2018

CaseChat Overview and Summary

The plaintiffs, RHH Limited and Josef Christopher Roberts, sought leave to appeal to the Court of Appeal from the decision of an associate judge refusing them leave to apply for interrogatories after the close of the pleadings date. The defendants, Sandrine Anderson and Helice Properties Limited, opposed the application. The matter was heard telephonically, and the associate judge delivered judgment on the same day.

The central legal issue was whether the plaintiffs should be granted leave to appeal the decision of the associate judge declining their application for interrogatories after the close of pleadings date. The plaintiffs argued that the associate judge had erred in refusing leave and that the Court of Appeal should review both the leave decision and the merits of the interrogatories application. The defendants contended that the plaintiffs' application for leave should be dismissed as it did not meet the criteria for appeal from an interlocutory decision.

The court considered the purpose of appeal, which is to correct errors at first instance. However, Parliament intended that some decisions, particularly procedural ones, should stand even if erroneous to preserve the finality of decisions. The court noted that the plaintiffs' application involved a relatively minor procedural point and would require significant time and resources from the Court of Appeal. Additionally, it would divert defence counsel from other commitments and disrupt both parties' preparation for the substantive hearing. The court found that the plaintiffs had not demonstrated that their wish to appeal outweighed the interest in finality of decision and the potential disruption to the proceedings. Therefore, the court dismissed the application for leave to appeal.

The court did not provide final orders in this judgment as it was only concerned with the application for leave to appeal. However, it did extend the time for the defendants to file and serve their supplementary affidavit of documents.

Orders