Sonsram Trustee Limited and Arjun Sami v Harrison Grierson Consultants Limited

IN THE SUPREME COURT OF NEW ZEALAND

SC 76/2017
[2017] NZSC 138

BETWEEN

SONSRAM TRUSTEE LIMITED
First Applicant

ARJUN SAMI
Second Applicant

AND

HARRISON GRIERSON CONSULTANTS LIMITED
Respondent

Court:	Elias CJ, Glazebrook and OʼRegan JJ
Counsel:	P L Twist for Applicants M J Dennett for Respondent
Judgment:	12 September 2017

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B The applicants are to pay costs of $2,500 to the respondent.

____________________________________________________________________

REASONS

In 2005, a company called Redhill Development (NZ) Ltd (Redhill) engaged the respondent to provide professional services in relation to a subdivision development. Redhill went into liquidation in 2009, but the applicants say it assigned its rights under the consultancy contract to the first applicant. The applicants commenced proceedings against the respondent for alleged breaches of express or implied terms of the consultancy contract and also for breaches of a duty of care said to have been owed to Redhill and to the second applicant.
The respondent applied to strike out the applicants’ claim and/or for summary judgment on its defence. Associate Judge Christiansen found that all of the applicants’ claims were statute barred, as the causes of action arose no later than July 2008 and the proceeding was commenced more than six years after that date.[1] He rejected arguments that the contract and engagement remained on foot, that a reasonable discoverability approach should be applied or that, even if more than six years has elapsed from the time the causes of action arose, the Court should refuse summary judgment in the exercise of its discretion. He also rejected an argument that the respondent had contracted out of the requirements of the Limitation Act 1950. The arguments that the contract remained on foot were essentially fact‑specific and it is not necessary to recount this factual background for present purposes.
[1]Sonsram Trustee Ltd v Harrison Grierson Consultants Ltd [2016] NZHC 581.
The applicants appealed to the Court of Appeal. That Court dismissed the appeal, essentially upholding the High Court’s view that all of the causes of action accrued by July 2008 at the latest, and were therefore statute barred.[2]
[2]Sonsram Trustee Ltd v Harrison Grierson Consultants Ltd [2017] NZCA 264 (Harrison, Venning and Simon France JJ).
The Court of Appeal dismissed an application by the applicants to adduce new evidence in support of their appeal and also awarded costs against the applicants.
The applicants seek leave to commence three separate appeals in this Court, against the Court of Appeal’s decision dismissing the application to adduce new evidence, the Court of Appeal substantive decision and the Court of Appeal’s decision awarding costs. In truth these were all aspects of the same Court of Appeal decision and could be addressed in a single appeal to this Court. However, we will consider each in turn.
The Court of Appeal’s decision to dismiss the application to adduce new evidence involved the application of well-settled law to the particular facts. No point of public importance arises and we see no appearance of a miscarriage.
The Court of Appeal’s substantive decision involved a detailed analysis of the consultancy contract and the action by the respondent’s employee in relation to that contract to establish when the proposed causes of action in contract and tort accrued. Again, it did not involve the consideration of any novel point of law and was specific to the facts of the present case. It largely involved findings of fact that were concurrent with those of the High Court. We do not see any point of public importance arising, and nor do we see any sufficient prospect of success in an appeal to this Court to justify the granting of leave.
The Court of Appeal’s decision to award costs was unexceptional, given the outcome of the appeal to that Court.
We do not consider that the criteria for the grant of leave to appeal to this Court are made out. [3] We therefore dismiss the application for leave to appeal.
[3]Senior Courts Act 2016, s 74; Supreme Court Act 2003, s 13.
We award costs of $2,500 to the respondent.

Solicitors:
Patel Nand Legal, Auckland for Applicants
Kennedys, Auckland for Respondent

CaseChat Overview and Summary

In the case of Sonsram Trustee Limited and Arjun Sami v Harrison Grierson Consultants Limited, the applicants sought leave to appeal a decision of the New Zealand Court of Appeal, which had dismissed their appeal against a decision of the High Court to strike out their claims against the respondent. The applicants alleged that the respondent had breached the terms of a consultancy contract and breached a duty of care owed to Redhill Development (NZ) Ltd and to the second applicant. The Court of Appeal had dismissed an application to adduce new evidence, dismissed the appeal, and awarded costs against the applicants. The applicants sought leave to appeal to the Supreme Court of New Zealand, which was dismissed.

The central legal issue was whether the applicants' claims were statute barred, given that the causes of action arose no later than July 2008 and the proceeding was commenced more than six years after that date. The Court of Appeal had held that all of the causes of action accrued by July 2008 at the latest, and were therefore statute barred. The applicants argued that the contract and engagement remained on foot, that a reasonable discoverability approach should be applied, or that, even if more than six years had elapsed from the time the causes of action arose, the Court should refuse summary judgment in the exercise of its discretion. However, the Court of Appeal rejected these arguments and held that the applicants' claims were statute barred. The Supreme Court of New Zealand dismissed the application for leave to appeal, holding that no point of public importance arose and that there was no sufficient prospect of success in an appeal to this Court to justify the granting of leave.

The Supreme Court of New Zealand dismissed the application for leave to appeal and awarded costs of $2,500 to the respondent. The Court held that the Court of Appeal's decision to dismiss the application to adduce new evidence, dismiss the appeal, and award costs were unexceptional and did not involve any novel point of law. The Court did not see any appearance of a miscarriage or any sufficient prospect of success in an appeal to this Court to justify the granting of leave. The Court noted that the criteria for the grant of leave to appeal to this Court were not made out.

This case highlights the importance of timely commencement of legal proceedings and the need to carefully consider the applicable limitation periods. It also underscores the role of the Supreme Court of New Zealand in reviewing decisions of the Court of Appeal and the criteria that must be met to grant leave to appeal. In this case, the Supreme Court of New Zealand held that the applicants had not met the criteria for leave to appeal and dismissed the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established