Shores v Howden
[2024] NZHC 1623
•19 June 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2023-404-000689
[2024] NZHC 1623
UNDER The Property Law Act 2007 IN THE MATTER OF
A Right-of-Way over 30 Glengarry Avenue Whangaparāoa
BETWEEN
MARY LOUISE SHORES
Appellant
AND
CHARLES ALAN HOWDEN and WITHERS & CO TRUSTEE COMPANY
LIMITED as trustee of the Charles Alan Howden Family Trust
First RespondentsCAROLYN ANN HOWDEN and WITHERS & CO TRUSTEE COMPANY
LIMITED as trustee of the Carolyn Ann Howden Family Trust
Second Respondents
On the papers Appearances:
S Russell for the Appellant
J Hannan & P Brash for the Respondents
Judgment:
19 June 2024
JUDGMENT OF TAHANA J
(Leave to appeal)
This judgment was delivered by me on 19 June 2024 at 2.30pm Pursuant to Rule 11.5 of the High Court Rules
Solicitors/Counsel: Wynyard Wood, Auckland
Bankside Chambers., Auckland Russell Legal, Auckland
…………………………
Registrar/Deputy Registrar
SHORES v HOWDEN (Leave to appeal) [2024] NZHC 1623 [19 June 2024]
Introduction
[1] The appellant, Ms Shores, appealed the decision of Judge A A Sinclair in the District Court at Auckland on 17 March 2023.1 The appeal is set down for hearing on 24 July 2024.
[2] On 20 December 2023, I declined Ms Shores’ application to adduce as new evidence on appeal, the affidavit of Mr Michael Martin, a civil engineer. 2 Ms Shores now applies under s 56(3) of the Senior Courts Act 2016 for leave to appeal my decision. The respondents (the Howdens) oppose the application.
Background
[3] The Howdens applied to the District Court for an order under s 313 of the Property Law Act 2007 (PLA) requiring Ms Shores to reinstate a driveway so they could access a right of way over Ms Shores’ property. Ms Shores cross-applied under s 317 of the PLA to extinguish the right of way.
[4] The applications were heard together. The Judge granted the Howdens’ application and dismissed Ms Shores’ application. At the hearing, Ms Shores relied on the affidavit evidence of Mr Vaotogo, a civil and structural engineer.
[5] On appeal, Ms Shores applied to adduce the new evidence of Mr Martin. I declined that application because I did not consider the evidence was fresh3 and was not satisfied there were exceptional circumstances to justify it being adduced.4 Mr Martin’s evidence contradicted the evidence of Mr Vaotogo who had agreed that it was not feasible to construct a direct accessway to the Howdens’ property.
[6] After my decision, Ms Shores applied to adduce a new affidavit of Mr Vaotogo dated 27 February 2024. Mr Vaotogo deposed that he had made a statement in error, without giving it due consideration and that his position had now changed.
1 Howden v Shores [2023] NZDC 4736.
2 Shores v Howden [2023] NZHC 3811.
3 At [29].
4 At [39].
Mr Vaotogo annexed the designs prepared by Mr Martin and deposed that he had reviewed them with his software and that he agreed with them.
[7] On 18 April 2024, Lang J declined Ms Shores’ application to adduce the new affidavit of Mr Vaotogo.5 Ms Shores has also applied for leave to appeal Lang J’s decision.
[8] I therefore need to consider whether leave should now be granted for Ms Shores to appeal my 20 December 2023 decision.
Relevant law
[9] No appeal lies from any decision of the High Court on an interlocutory application in respect of any civil proceeding unless leave to appeal is granted.6
[10] The parties agree on the legal principles that apply to an application for leave to appeal. The following considerations are relevant:7
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.
5 Shores v Howden [2024] NZHC 844.
6 Senior Courts Act 2016, s 56(3).
7 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6] citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
[11] Further, in Li v Chief Executive, Ministry of Business, Innovation and Employment8 this Court considered that an application to appeal an interlocutory decision under s 56(3) is likely to be granted where: (a) there is good reason to consider it before, or separately to, the substantive appeal; and (b) it is sufficiently meritorious in substance and relates to a sufficiently important issue as to outweigh the cost and delay of appeal.9
Should leave be granted to appeal?
Arguable error of law or fact
[12] I accept that there is an arguable error of fact if the new affidavit of Mr Vaotogo is adduced on appeal against my decision.10 That affidavit was not before this Court when I declined Ms Shores’ application to adduce Mr Martin’s evidence. Mr Vaotogo deposes that he was mistaken and he now wishes to correct his statement. Mr Vaotogo has not explained why he could not have given due consideration to the issue when he provided evidence to the District Court.
[13] At [29] of my judgment, I found that Mr Martin’s evidence contradicted the evidence of Mr Vaotogo and that the purpose of Mr Martin’s evidence appears to be to bolster Ms Shores’ appeal by changing the evidence. Mr Vaotogo’s new affidavit raises an issue as to whether the purpose of Mr Martin’s evidence is to address a “mistake” (as now acknowledged by Mr Vaotogo) that was unknown to Ms Shores at the hearing or whether this is an attempt by Ms Shores to get around the evidence that was before the District Court. That is relevant to the issue of whether Mr Martin’s evidence is “fresh”.
[14] I therefore accept that given Mr Vaotogo’s new affidavit, there is an arguable error of fact.
8 Li v Chief Executive, Ministry of Business, Innovation and Employment [2018] NZHC 1171, [2018] NZAR 1134.
9 At [22].
10 Under r 45(1) of the Court of Appeal (Civil) Rules 2005, the Court of Appeal may grant leave for the admission of further evidence on questions of fact.
Is the alleged error of general or public importance?
[15] Counsel for Ms Shores notes that they have been unable to find any New Zealand case law where an expert on appeal has provided affidavit evidence of a “mistake” or change of opinion. The appeal raises an important issue as to the circumstances in which a litigant is entitled to adduce new evidence if their expert deposes that their opinion at trial was mistaken.
[16] The appeal also raises an important issue as to the finality of litigation and the impact of an expert’s “mistake” or change in opinion on that important principle.
Delay and interests of justice
[17] I accept that there will be delay if leave is granted. The appeal hearing will likely need to be adjourned to await the outcome of the appeal.
[18] Counsel for the Howdens argued that the new evidence will not be determinative of the appeal and therefore the issue is not of sufficient importance to justify further delay. Mr Martin’s evidence is relevant to whether extinguishment of the right of way will not substantially injure the Howdens, which is a relevant factor under s 317(1)(d) of the PLA. It may or may not be determinative of Ms Shores’ appeal as the Howdens may seek to adduce evidence in reply such that this Court cannot determine at this stage, whether the evidence will be determinative. The test requires that it is in the overall interests of justice to grant leave and I have determined that it is for the reasons set out above.
Should an extension of time be granted?
[19] Any application for leave to appeal should have been made within 20 working days from the date of my judgement, however, the Court has jurisdiction to allow for further time.11
[20] The Supreme Court has provided guidance on the relevant factors when considering whether to extend the time for filing an appeal, which factors comprise:
11 Senior Courts Act 2016, s 56(3).
the length and reasons for the delay, the conduct of the parties (particularly the applicant), any prejudice or hardship to the respondent; the significance of the issues raised on appeal; and the merits of the proposed appeal.12
[21] The delays are due to the conduct of Ms Shores’ appeal. No explanation has been provided as to why Ms Shores did not appeal my decision within the prescribed timeframe and seek to adduce the new affidavit of Mr Vaotogo on appeal from that decision. The further application to adduce Mr Vaotogo’s new affidavit has added to the delays and has now put the appeal hearing in jeopardy. If the appeal is upheld, further delays are likely to allow time for the Howdens to respond to Mr Martin’s evidence. The resolution of the appeal will therefore be delayed. There is prejudice to the Howdens in having to respond to the delays if the appeal is allowed.
[22] Against that, I accept that it is in the interests of justice to grant leave to appeal. The appeal raises important issues as to the conduct of experts and the rights of litigants when an expert deposes that their expert opinion was made in error and without due consideration. In those circumstances, it is appropriate to grant leave for the application to be filed out of time.
Result
[23] Leave is granted to Ms Shores to appeal my judgment dated 20 December 2023.
[24] In circumstances where the delay in seeking leave to appeal is due to the conduct of Ms Shores’ appeal and such delays have caused prejudice to the Howdens, costs will lie where they fall.
Tahana J
12 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35] to [40].
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