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

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

CaseChat Overview and Summary

The High Court of New Zealand, Christchurch Registry, was presented with an application for leave to appeal a judgment made on 29 September 2009, concerning the interpretation of the term "failure" within the context of a legal dispute between Shirleen Shia Ling Sim and New Zealand Home Bonds Limited. The appeal stemmed from a case in which the Court had considered whether it was obliged to adhere to a previous decision of the Court of Appeal, specifically Singh v New Zealand Home Bonds Limited. The appellant argued that the earlier Court of Appeal decision did not adequately address the interpretation of "failure," and that the matter should be revisited by the Court of Appeal.

The legal issues at the core of this case involved the obligation of the High Court to follow precedent set by the Court of Appeal and the interpretation of the term "failure" in the context of the case. The court needed to determine if it was indeed bound by the reasoning of the Court of Appeal, and if not, whether the interpretation of "failure" should be reconsidered by a higher court. The case hinged on the broader implications of the interpretation of "failure," as numerous similar cases involving New Zealand Home Bonds Limited were pending across the country.

In delivering the judgment, the court found that although it was not strictly bound by the earlier decision of the Court of Appeal, it should generally follow the reasoning provided. However, the court acknowledged that the earlier case had not fully argued the issue of the term "failure," and therefore, the matter warranted reconsideration by the Court of Appeal. The court granted the application for leave to appeal, emphasizing the importance of the issue beyond the immediate parties involved. It was noted that while the amount in dispute was less than $50,000, the broader implications for similar cases necessitated a resolution by a higher court.

The court also reserved costs for a later determination. The appellant was granted leave to appeal, on the condition that the notice of appeal was to be filed within two weeks. The court underscored the urgency and significance of the case, urging the appellant to proceed swiftly with the preparation of the case on appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established