Samoilov v Burley - [2007] NZCA 162

IN THE COURT OF APPEAL OF NEW ZEALAND
CA250/06
[2007] NZCA 162
BETWEENALEXANDRE SAMOILOV

Appellant

ANDNICHOLA ANN BURLEY AND PATRICK CHARLES STUART

Respondents

Hearing:16 April 2007

Court:O'Regan, Robertson and Wilson JJ
Counsel:Appellant in person

D D Vincent for Respondents

Judgment:30 April 2007 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by O’Regan J)
Issue
[1]       This is an appeal against a judgment of Associate Judge Doogue striking out the appellant’s counterclaim against the respondents: HC TAU CIV-2003-070-123 19 October 2006. The issue before us is whether this Court has jurisdiction to consider the appeal.
Background
[2]       The dispute between the parties has its origins in a property transaction in which the respondents acted as solicitors for the appellant. The respondents undertook the conveyancing, and also acted for the appellant in relation to various disputes that broke out in relation to the property.
[3]       The appellant did not pay fees charged by the respondents. They sued in the District Court for payment of those fees, and sought summary judgment. The appellant counterclaimed, seeking unquantified damages. The summary judgment was granted in relation to a portion of the outstanding fees, but not the major portion. The substantive claim in relation to the balance of the fees was adjourned.
[4]       The appellant then quantified the damages which he sought in relation to his counterclaim at a sum in excess of $8 million, and the proceedings were transferred to the High Court. The respondent applied for summary judgment in respect of its claim, summary judgment dismissing the appellant’s counterclaim, or alternatively an order striking out the appellant’s counterclaim.
[5]       In the High Court, the Associate Judge was dealing only with the respondent’s application for summary judgment dismissing the appellant’s counterclaim and the respondent’s application for an order striking out the appellant’s counterclaim. He decided to deal with the application to strike out first, and determined that the counterclaim should be struck out. The appellant filed an appeal to this Court against that decision.
The Associate Judge’s jurisdiction
[6]       The Associate Judge’s jurisdiction to consider the application to strike out the appellant’s counterclaim was founded on s 26J(1) of the Judicature Act 1908 and Rule 61A(1) of the High Court Rules. The combined effect of those provisions is to give jurisdiction to an Associate Judge to exercise a power which could be exercised by a High Court Judge sitting in chambers. The application to strike out the appellant’s counterclaim was an interlocutory application seeking an order which a High Court Judge could make in chambers. Under r 251(1) of the High Court Rules, every interlocutory application (except an application for summary judgment) must be heard in chambers unless the court otherwise directs. No such direction was given in this case. In the absence of such a direction, by definition the matter was dealt with in chambers: Sutton v New Zealand Guardian Trust Co Ltd (1989) 2 PRNZ 111 at 115.
[7]       The matters dealt with by Associate…

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: [2007] NZCA 162
Decision Date: 30 April 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Alexandre Samoilov against Nicola Ann Burley and Patrick Charles Stuart. The appeal arose from a decision by Associate Judge Doogue to strike out Samoilov's counterclaim in a case that originated from a property transaction. The respondents acted as solicitors for Samoilov, but he did not pay the fees charged. The respondents sued for payment of the fees, and Samoilov counterclaimed for unquantified damages. The issue before the Court of Appeal was whether it had jurisdiction to consider the appeal against the decision to strike out the counterclaim.

The Court of Appeal noted that the jurisdiction of an Associate Judge to consider an application to strike out a counterclaim was based on specific provisions in the Judicature Act 1908 and the High Court Rules. In this case, the Associate Judge's jurisdiction was derived from s 26J(1) of the Judicature Act and Rule 61A(1) of the High Court Rules, which allowed an Associate Judge to exercise a power that could be exercised by a High Court Judge sitting in chambers. The Court of Appeal found that the matter was indeed heard in chambers, despite being held in a courtroom, as the physical location of the hearing was not a determinant of the nature of the proceeding.

The Court of Appeal further explained that under s 26P(1) of the Judicature Act, any party seeking review of a decision made by an Associate Judge in chambers must apply to the High Court. Consequently, the Court of Appeal did not have jurisdiction to hear the appeal against the decision of Associate Judge Doogue. The Court acknowledged that the situation might be confusing for litigants in person and offered guidance for Samoilov on how to proceed with his challenge to the decision.

The Court of Appeal dismissed the appeal due to the lack of jurisdiction. The appellant was advised that if he wished to pursue his challenge to the decision of Associate Judge Doogue, he should apply to the High Court for a review of that decision by a High Court Judge. The Court also mentioned that Samoilov would need to seek the leave of the High Court to make such an application out of time if he did so.

Orders