Terry v McLellan

[2015] NZCA 87

IN THE COURT OF APPEAL OF NEW ZEALAND

CA584/2014
[2015] NZCA 87

BETWEEN	ROBERT FRANK TERRY Applicant
AND	ROSALIND MEGAN McLELLAN Respondent

Hearing:	16 March 2015
Court:	Randerson, Wild and French JJ
Counsel:	Applicant in Person G M Brodie for Respondent
Judgment:	24 March 2015 at 10.30 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.

BThe applicant is to pay the respondent’s costs as for an application for leave to appeal on a band A basis with usual disbursements.

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REASONS OF THE COURT

(Given by Wild J)

1. This is an application under s 67 of the Judicature Act 1908 for leave to appeal from a judgment Whata J delivered in the High Court at Greymouth on 8 August 2014.[1]

   [1]Terry v McLellan [2014] NZHC 1861.

2. As required by s 67(2) Mr Terry initially sought leave from the High Court.  This was declined by Whata J in a short judgment delivered on 19 September 2014.[2] 

   [2]Terry v McLellan [2014] NZHC 2280.

3. In his substantive judgment Whata J set out the background to this matter:

   Background

   [2]       There is a long history to this matter, though I need only essay the last few years. In March 2012, Judge Moran decided that the respondent Rosalind McLellan was entitled to possession and ownership of land at Soldiers Big River Road, subject to payment of about $12,000 to Mr Terry. Later that year Joe Williams J allowed Mr Terry’s appeal against the District Court’s decision, finding that Mr Terry had an equitable interest in the land.[3] After judgment and at Rosalind’s request (but I’m told without recourse to Mr Terry) the Judge directed that the matter be remitted back to Judge Moran to determine the nature and extent of Mr Terry’s equitable interests in the farm. A further hearing was held and in January 2013 in an interim decision Judge Moran decided that Mr Terry was entitled to about half the property. He then issued a minute inviting submission on how the matters should be finally resolved, and in April decided that Mr Terry may purchase Ms McLellan’s half share for $31,000 and had until 4 pm, 28 June 2013 to do so. There is then a request from Mr Terry that Judge Moran set aside an order for costs and reconsider the orders just made. That application was rejected. An order is then made on 18 July 2013 for vacant possession of the land subject to payment of $23,925.60. A further application is then made by Mr Terry to review the order as to costs and that application is also rejected. The order made on 18 July 2013 was then sealed on 27 August 2013.

   [3]       Mr Terry filed an application to the High Court seeking leave to appeal out of time against the decision of Judge Moran of 26 July 2013 (that is, dealing with his refusal to review the costs order). That application was rejected by the High Court as is a subsequent application for leave to appeal to the Court of Appeal.[4] Mr Terry then filed an application to have the sealed orders of Judge Moran’s judgment set aside by the District Court.

   [3]Terry v McLellan [2012] NZHC 2205.

   [4]Terry v McLellan [2013] NZHC 3045, Terry v McLellan [2014] NZCA 270.

4. Whata J then set out passages from the judgment of Judge O’Driscoll dismissing Mr Terry’s application to set aside the sealed order of Judge Moran.  Whata J shared Judge O’Driscoll’s view of Mr Terry’s application.  In his substantive judgment he described the application for leave to appeal in these terms:[5]

   It is in reality a back door attempt to achieve what could not be achieved through the front door.  That cannot possibly be allowed by this Court.

   [5]Above, n 1 at [8].

5. Judge Whata went on to record that Gendall J had dismissed Mr Terry’s application for leave to appeal Judge Moran’s decision, finding no basis for any criticism of it.  Indeed, Gendall J had observed that it could be said Judge Moran had taken the option most favourable to Mr Terry throughout.  This Court had subsequently agreed.[6]

   [6]Above n 4.

6. In opposing the present application Mr Brodie drew all this together by submitting, orally:

   So there was an appeal to Whata J against the refusal to grant a rehearing.  Whata J dismissed that.  And then Mr Terry sought leave to appeal to this Court against Whata J’s refusal and His Honour refused leave and there is now an application to this Court for leave to appeal against the refusal to grant leave to appeal against the refusal to grant a rehearing.  In exactly the same judgment which has been the subject of the first series of appeals leading to the Court of Appeal decision I have already referred Your Honours to.  …

7. For two reasons, we decline this application.  First, a second appeal to this Court must  involve a question of law or fact capable of genuine and serious argument involving some public or private interest sufficiently important to outweigh the cost and delay of the second appeal.[7]  Mr Terry’s proposed appeal falls well short of meeting that test.

   [7]Waller v Hider [1998] 1 NZLR 412 (CA) at 413–414.

8. Secondly, we agree with Whata J that what Mr Terry is seeking is an opportunity to relitigate matters that have been finally and authoritatively decided.  By “authoritatively”, we are referring to the fact that the underlying substantive matter has already come as far as this Court.

9. For those reasons the application is dismissed.  The applicant is to pay the respondent’s costs as for an application for leave to appeal on a band A basis with usual disbursements.

Solicitors:
Carrruthers and Wetherall, Greymouth for Respondent