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Siemer v Stiassny

Siemer v Stiassny

Case [2009] NZCA 624 22 December 2009

Civil Litigation & Procedure

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA453/2009
[2009] NZCA 624
BETWEENVINCENT ROSS SIEMER

Appellant

ANDMICHAEL PETER STIASSNY

First Respondent
ANDKORDA MENTHA (FORMERLY FERRIER HODGSON)

Second Respondent

Hearing:1 December 2009

Court:O'Regan, Robertson and Baragwanath JJ
Counsel:Appellant in person (by video conference)

R E Harrison QC as counsel assisting the Court
J G Miles QC and P I L Hunt for First and Second Respondents

Judgment:22 December 2009 at 4 pm

JUDGMENT OF THE COURT

AThe appeal in CA453/2009 is treated as abandoned under r 43(1) of the Court of Appeal (Civil) Rules 2005.
BAn extension of time to commence a new notice of appeal is granted and we direct that the notice of appeal in CA453/2009 be treated as having been resubmitted and accepted for filing on the date of this judgment.
CThe application to strike out the appeal, which we treat as applying to the new appeal, is granted in part. We strike out the appeal except to the extent that it relates to the quantum of the damages awarded in favour of the respondents in the High Court.
DSecurity for costs is dispensed with.
EWe make no award of costs in relation to the matters dealt with in this judgment.

____________________________________________________________________
REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1]        The appellant wishes to appeal against a decision of Cooper J in which he was found liable for both defamation and breach of contract and ordered to pay the respondents damages totalling $920,000: Korda Mentha v Siemer HC AK CIV 2005-404-1808 23 December 2008. There have been a number of procedural issues in relation to the proposed appeal and, in addition, the respondents have applied to have this appeal struck out or, in the alternative, for an order increasing the amount of security for costs.
[2]        The respondents’ applications were heard on 1 December 2009 and, at the same time, we heard submissions on the procedural issues and the steps required to address them. This judgment canvasses all the issues dealt with at that hearing.
[3]        Dr Harrison QC appeared at the 1 December hearing as counsel assisting the Court. We are grateful to him for his assistance.
A brief background to the present proceedings
[4]        The past five years have seen the appellant entangle himself in a complex web of proceedings. For the purposes of this case, it is only necessary to refer to one strand of that web.
The events leading up to the High Court hearing
[5]        The brief background that follows relies substantially on Cooper J’s judgment.
[6]        In December 2000, the respondents were appointed as the receivers of Paragon Oil Systems Ltd (Paragon). The appellant held shares in Paragon and was its managing director. In July 2001, the Paragon receivership was terminated when the appellant became the sole shareholder. However, a dispute which had arisen over the costs charged for the receivership continued.
[7]        The appellant made numerous complaints regarding the respondents and the conduct of the receivership. Many of the…

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.

Continue reading Siemer v Stiassny

Details

AGLC: Siemer v Stiassny [2009] NZCA 624
Case: [2009] NZCA 624
Decision Date: 22 December 2009

CaseChat Overview and Summary

In Siemer v Stiassny, the Court of Appeal of New Zealand addressed an appeal by Vincent Ross Siemer against a decision of Cooper J in which Siemer was found liable for defamation and breach of contract, and ordered to pay damages to the respondents. The appeal was initially abandoned due to procedural delays, but an extension of time was granted for filing a new appeal. The Court also granted the respondents' application to strike out the appeal in part, allowing only a challenge to the quantum of damages awarded. The respondents' application for increased security for costs was declined due to Siemer's bankruptcy status.

The Court found that the appeal was abandoned due to procedural delays, but an extension of time was granted as the delay was caused by the Court's own actions. The Court adopted a nuanced approach to the respondents' application to strike out the appeal, considering the interests of justice and the importance of the observance of court orders. The appeal was struck out except for the quantum of damages awarded. The Court declined to require security for costs, acknowledging Siemer's bankruptcy status and lack of access to funds in New Zealand.

Orders