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Stone v Newman

Stone v Newman

Case [2002] NZCA 48 21 March 2002

International Trade Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA3/02

BETWEEN	IAN HENRY STONE AND JOHN ARTHUR KELLY
Applicants

AND	JONATHAN NEWMAN, PETER HEFFERING AND LOU DAMIANO
First Respondents

AND	JOHN DANIEL CURTIN
Second Respondent

Hearing:	11 March 2002
Coram:	Gault J Blanchard J McGrath J
Appearances:	M S Cole for the Appellant A D Banbrook for the Respondents
Judgment:	21 March 2002

JUDGMENT OF THE COURT DELIVERED BY MCGRATH J

Introduction

This is an application for leave to appeal against a judgment of the High Court (Williams J, CL11/01, Auckland, 25 October 2001) rejecting an application to dismiss the proceeding. The application is brought by Mr Stone and Mr Kelly (the applicants) who are two members of what is described in the statement of claim as a racing partnership (which we shall refer to in this judgment as the partnership without making any findings as to its legal status). The partnership has four members and is the first defendant in the proceeding. The applicants, who reside in New South Wales Australia, have objected to the jurisdiction of the High Court of New Zealand to hear and determine the proceeding.
The first respondents to the present application are three North American businessmen who are investors in bloodstock. The second respondent is Mr Curtin who is their New Zealand based agent. They are the plaintiffs in the proceeding who have sued the partnership, and Mr Anthony Butt, who they say is its authorised agent, alleging breach of contract to sell a pacer named Pocket Me. Other members of the partnership, in addition to the applicants, are Mrs Karen Butt, who has a 40% share, and Mr Barrett. Mrs Butt is the wife of Anthony Butt who is the regular driver of Pocket Me. Mr and Mrs Butt and Mr Barrett are all residents of Christchurch.
In their proceeding the respondents allege that on 20 April 2001, through their authorised agent Mr Curtin, the first respondents entered into a written contract with Mr Butt, who was acting on behalf of the partnership with its authority, for the purchase of Pocket Me for $250,000. They allege that the contract provided that if the purchase were completed, as contemplated by the contract, during the imminent Inter Dominion Harness Racing carnival at Brisbane, all stakes won during the carnival by Pocket Me would be divided equally between the racing partnership and the North American respondents. The respondents say the partnership has repudiated the contract of 20 April 2001 and seek specific performance. Alternatively they claim damages from Mr Butt for misrepresentations as to his authority to sell the horse.
The present application for leave to appeal is brought under s24G(2) of the Judicature Act 1908, the proceeding being one in the Commercial List. The High Court has itself refused leave to appeal (Williams J, CL11/01, Auckland, 17 December 2001). In this appeal Mr Butt and Mrs Butt abide the decision of the Court.

Background facts

Pocket Me is a six year old New Zealand bred pacer,…

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 Stone v Newman

Details

AGLC: Stone v Newman [2002] NZCA 48
Case: [2002] NZCA 48
Decision Date: 21 March 2002

CaseChat Overview and Summary

This appeal concerns an application for leave to appeal against a decision of the High Court of New Zealand, which rejected an application to dismiss the proceeding brought by the respondents against the applicants, who are two members of a partnership. The partnership is the first defendant in the proceeding, and the applicants reside in New South Wales, Australia. The applicants objected to the jurisdiction of the New Zealand High Court, arguing that it should not hear and determine the proceeding. The first respondents to the application are three North American businessmen who are investors in bloodstock, and the second respondent is their New Zealand-based agent. They sued the partnership and Mr Anthony Butt, who they claim is the authorised agent of the partnership, alleging breach of contract to sell a pacer named Pocket Me.

The primary legal issues the Court was required to decide were whether the Court should grant leave to appeal against the interlocutory decision of the High Court under s24G of the Judicature Act 1908 and whether there was a good arguable case against the applicants on the merits. The Court also needed to determine whether the claim had a more real and substantial connection with New Zealand than with Queensland and whether New Zealand was the natural forum for the case.

The Court of Appeal held that the threshold for leave to appeal under s24G of the Judicature Act was not met in this case. The Court emphasised the importance of providing a foreign citizen resident abroad with the fullest available opportunity to contest jurisdiction, especially when considerable sums are at stake. The Court found that the claim had a more real and substantial connection with New Zealand than with Queensland and that New Zealand was the natural forum for the case. The Court also concluded that the requirement for a good arguable case on the merits was satisfied, as there were sufficient grounds for the New Zealand Court to properly assume jurisdiction.

Final orders:

1. The application for leave to appeal is dismissed.
2. The respondents are entitled to costs of $3,000 together with reasonable disbursements including travel and accommodation expenses to be fixed if necessary by the Registrar.

Orders