Terry v McLellan - [2014] NZHC 1861

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CIV 2014-418-000013 [2014] NZHC 1861

BETWEEN
ROBERT FRANK TERRY

Appellant

AND

ROSALIND MEGAN McLELLAN Respondent

Hearing:
6 August 2014

(Heard at Christchurch)

Appearances:

Appellant in person
A M Toohey for Respondent

Judgment:

8 August 2014

JUDGMENT OF WHATA J

[1] Mr Terry does not believe he has been well served by the judicial system. He complains that he has been deprived of the opportunity to be heard in the High Court and in the District Court on matters of great importance to him. His attempt to appeal out of time on a judgment concerning one of those matters has been dismissed by the High Court and the Court of Appeal. Undeterred, Mr Terry sought to have the sealed orders of the same judgment set aside. He failed in this also and now appeals to me.

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

TERRY v McLELLAN [2014] NZHC 1861 [8 August 2014]

equitable interest in the land.1 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.2 Mr Terry then filed an application to have the sealed orders of Judge Moran’s judgment set aside by the…

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 Terry v McLellan

Details

AGLC: Terry v McLellan [2014] NZHC 1861
Case: [2014] NZHC 1861
Decision Date: 8 August 2014

CaseChat Overview and Summary

The case of Terry v McLellan involves the appellant, Robert Frank Terry, who appeals against a decision of Judge O’Driscoll of the District Court. The dispute centres around the refusal of Judge O’Driscoll to set aside sealed orders made by Judge Moran, which dealt with the distribution of land and payment of costs. The case was heard at the Christchurch registry of the High Court of New Zealand.

The legal issues the court had to decide included whether the District Court had jurisdiction to set aside the sealed orders given that the underlying decision had already been appealed to the High Court and Court of Appeal, and whether there was a miscarriage of justice due to procedural irregularities in the proceedings. Additionally, the court examined whether the application to set aside the sealed orders constituted an attempt to re-litigate matters that had already been decided.

The court's reasoning involved rejecting the notion that the District Court had jurisdiction to set aside the sealed orders as the underlying decision had been subject to higher court appeals. The court further dismissed the idea that the appellant had not been given a proper opportunity to be heard, noting that he had participated in the proceedings and had the chance to appeal within the specified time. The court concluded that the application was essentially a backdoor attempt to appeal, which was not permissible. Therefore, the appeal was dismissed, and costs were awarded to the respondent on a standard basis with an uplift of 50%.

The final orders of the court were that the application for leave to appeal was dismissed, and costs were awarded to the respondent on a standard basis with a 50% uplift. The court also noted that while the appeal might be considered futile and an abuse of process, it was not excessive to grant indemnity costs due to the simplicity of the appeal's construction.

Orders