Sim v New Zealand Home Bonds Limited HC CHCH CIV 2009-409-000394

[2009] NZHC 2333

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CIV 2009-409-000394

BETWEEN  SHIRLEEN SHIA LING SIM

Appellant

AND  NEW ZEALAND HOME BONDS LIMITED

Respondent

Hearing:         21 October 2009

Counsel:         D M Lester for Respondent

Judgment:      21 October 2009

JUDGMENT OF FOGARTY J

[1]      This is an application for leave to appeal a judgment of this Court which  I

delivered on 29 September 2009.   In that judgment I examined closely whether or not I was bound to follow an earlier decision of the Court of Appeal:   Singh v New Zealand Home Bonds Limited [2009] NZCA 103.

[2]      I  decided  that  strictly  speaking  I  was  not  bound  but,  however,  I  ought  to follow the reasoning of the Court of Appeal.   I made it clear in the judgment that I believed the case had not been fully argued before the Court of Appeal.

[3]      I was also of the view that the facts in that case did not really expose the issue

as to the interpretation of the word “failure”.  I noted that the Court of Appeal did not actually interpret  the  word  “failure”  and  I had  to  infer  that.   Reading between  the lines I would have thought it was obvious that I was inviting this issue to be taken back to the Court of Appeal.

SIM V NEW ZEALAND HOME BONDS LIMITED  HC CHCH CIV 2009-409-000394  21 October 2009

[4]      There  is  a  recent  judgment  of  Judge  Neave:     New  Zealand  Homes  Bonds Limited v Croft DC CHCH CIV 2009-009-000172  13 October 2009, most of which was drafted before he saw the judgment of this Court.   Judge Neave similarly had difficulties  with  the  Court  of  Appeal  judgment  and  at  the  end  of  his  judgment  he interprets mine as inviting the parties to go back to the Court of Appeal and likewise thought that the issue should go to the Court of Appeal.

[5]      Leave to appeal is provided by s 67 of the Judicature Act 1908.   I have no doubt that this is an important matter that should be considered again.  Although the amount at stake in this case is less than $50,000 there are numerous bonds from this company in effect around the country.   Mr Lester, who appears in all the cases has indicated there are about half a dozen cases this year.

[6]      I  am  satisfied  that  the  question  of  the  meaning  of  the  word  “failure”  is  an issue which needs to go back to the Court of Appeal.   The other grounds of appeal would  not  of  themselves  justify  leave  to  the  Court  of  Appeal. However,  as  I apprehend it, once leave is granted the appellant is free in the usual way to settle the appellant’s own points of appeal.

[7]      Accordingly,  this  application  for  leave  is  granted,  on  the  condition  that the notice of motion of appeal is to be filed within two weeks.  The two week notice was sought by Mr Lester. I agree with  it. Obviously his client needs this issue to be resolved. I would endorse that. This is plainly a case of importance  beyond  the immediate parties and it behoves the appellant to proceed as swiftly as possible with the preparation of the case on appeal. But otherwise I leave the tracking and disposal of this appeal to the Court of Appeal.

[8]      Costs are reserved.

Solicitors:

Shean Shing, Auckland, for Appellant

D Lester, Christchurch, for Respondent