Siemer v Complete Construction Limited

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA556/2019
[2020] NZCA 470

BETWEEN	VINCENT ROSS SIEMER Appellant
AND	COMPLETE CONSTRUCTION LIMITED Respondent

Court:	Clifford and Courtney JJ
Counsel:	Appellant in person J M Skinner and E W Davies for Respondent
Judgment: (On the papers)	2 October 2020 at 11 am

JUDGMENT OF THE COURT

The application for leave to amend the grounds of appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

This is an application pursuant to r 34(2) of the Court of Appeal (Civil) Rules 2005 to amend grounds of appeal in an appeal which has been brought to the Court by leave.

Background

In a minute of 11 October 2019 Woolford J granted leave to Mr Siemer to appeal against a decision of Associate Judge Smith dated 12 September 2019 on the following three grounds:[1]
(a)Was leave of the High Court required for Mr Siemer to apply to set aside the bankruptcy notice served on him by Complete Construction Ltd on 25 March 2019, as determined by Associate Judge Smith in his minute dated 7 May 2019 and confirmed in his judgment dated 12 September 2019?
(b)If leave of the High Court was required, what consideration, if any, should be given to the fact that Mr Siemer was “merely responding to a step taken by the Judgment Creditor” as described by Associate Judge Smith in his minute dated 2 May 2019?
(c)Was it appropriate to award costs against Mr Siemer for the hearing on 2 September 2019, or at all?
[1]Complete Construction Ltd v Siemer HC Auckland CIV-2019-404-423, 11 October 2019 (Minute of Woolford J) at [20]; and Complete Construction Ltd v Siemer [2019] NZHC 2273.
Mr Siemer filed a notice of appeal dated 25 September 2019 against that judgment, without reference to the grounds on which leave was given. That notice of appeal was originally rejected, because Mr Siemer had not advised this Court of the grant of leave by the High Court. The notice was accepted after Mr Siemer advised the Court, on 23 October 2019, that leave had been granted.
On 5 November 2019 Mr Siemer applied for leave to amend the grounds of appeal approved by Woolford J. He was advised by the Registry on 22 November 2019 that leave was not required. Given the appeal had been brought with leave, that advice was clearly incorrect.
In a memorandum of 10 December 2019 the respondent opposed the requested amendment, other than to the extent that the notice of appeal would be amended to conform to the grounds of appeal for which Woolford J gave leave.
Other matters arose, particularly relating to security for costs. That issue was resolved by a judgment of this Court on 14 August 2020 granting Mr Siemer’s application for dispensation.[2]
[2]Siemer v Complete Construction Ltd [2020] NZCA 350.
Then, on 20 August Brown J directed that Mr Siemer’s application to amend the grounds of appeal was to be determined on the papers by two Judges in the MISMO list for 7 September 2020. Mr Siemer then filed a further amended notice of appeal.
On 3 September 2020 the respondent advised the Court it took a neutral position, being content to abide by the Court’s decision.

Analysis

In his minute of 11 October 2019 Woolford J carefully set out the background to Mr Siemer’s application for leave, the grounds Mr Siemer advanced and, in turn, the questions of law that arose.
We are satisfied that the questions of law set by the Judge provide the appropriate basis for an appeal. We also agree with the reasons Woolford J gave as to why other aspects of this proceeding, on which Mr Siemer wished to base further grounds of appeal, either are not themselves amenable to appeal or are adequately reflected in the grounds upon which leave was given.
On that basis, Mr Siemer’s applications to amend the grounds of appeal on which leave were granted are declined. The grounds for this appeal are those determined by Woolford J and set out at [2] of this judgment.

Solicitors:
Skinner Law, Auckland for Respondent

The Court of Appeal of New Zealand heard an application from Vincent Ross Siemer against Complete Construction Limited regarding grounds of appeal that had previously been granted by Woolford J. Siemer sought to amend the grounds of appeal, which were initially approved by Woolford J on 11 October 2019. The initial grounds of appeal focused on whether leave of the High Court was necessary for Siemer to apply to set aside a bankruptcy notice, what considerations should be taken into account if such leave was required, and whether it was appropriate to award costs against Siemer. Siemer filed a notice of appeal on 25 September 2019, which was initially rejected for not referencing the granted leave but was later accepted.

The legal issues before the Court of Appeal centered on whether Siemer could amend the grounds of appeal approved by Woolford J and if such amendments were necessary or appropriate. The Court needed to determine if the existing grounds of appeal sufficiently covered the issues at hand or if additional grounds were required. The Court was also tasked with assessing the correctness of the Registry's advice that leave was not required for amending the grounds of appeal, given that the appeal had been brought with leave.

The Court of Appeal, in a judgment delivered by Clifford J, declined Siemer's application to amend the grounds of appeal. The Court found that the questions of law set by Woolford J provided an appropriate basis for the appeal and that other aspects of the proceeding, which Siemer wished to base further grounds of appeal on, were either not amenable to appeal or adequately reflected in the existing grounds. The Court concluded that Siemer's application to amend the grounds of appeal was declined, and the appeal would proceed based on the grounds as determined by Woolford J.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established