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van Heeren v Kidd

van Heeren v Kidd

Case [2016] NZCA 401 19 August 2016

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA247/2015
[2016] NZCA 401

BETWEEN	ALEXANDER PIETER VAN HEEREN Appellant
AND	MICHAEL DAVID KIDD Respondent

Hearing:	11 and 12 April 2016 (further submissions received 14 April 2016)
Court:	Harrison, Miller and Cooper JJ
Counsel:	D J Goddard QC and S D Williams for Appellant S J Mills QC, B O’Callahan and T F Cleary for Respondent
Judgment:	19 August 2016 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellant must pay the respondent costs for a complex appeal on a band B basis and usual disbursements. We certify for two counsel.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Table of Contents

Para No
Introduction  [1]
Background  [7]
History of the litigation  [19]
Proceeding commenced in New Zealand  [19]
Judgment of Smellie J  [22]
Proceeding commenced in South Africa  [30]
      Back in New Zealand  [45]
      Pre-trial procedures in South Africa  [51]
The trial in South Africa  [60]
The South African judgment  [68]
      Appeal to the Supreme Court of South Africa  [97]
The appeal  [98]
Analysis  [112]
      The principal issue  [112]
      Failure to plead partnership  [153]
      Genan  [160]
      Alternative bases for decision  [166]
Caution in the case of foreign judgments  [170]
Standing back[177]
Interim orders  [179]
Result  [184]

Introduction

An issue estoppel arises where a judgment has determined an issue as an essential and fundamental step in the logic of the judgment and without which it could not stand.[1] The issue so determined may not be contested in subsequent litigation between the same parties. The rule rests on two foundations:
(a)the interest of the community in the determination of disputes and the finality and conclusiveness of judicial decisions; and
(b)the protection of individuals from repeated suits for the same cause.
[1]Talyancich v Index Developments Ltd [1992] 3 NZLR 28 (CA) at 37.
This appeal raises an important question about the approach to be taken in deciding whether the issue determined was in fact an essential part of the reasoning of the judgment said to give rise to the estoppel. The appellant, Mr van Heeren, contends that the second court, before which the estoppel is asserted, must inquire objectively for the purpose of forming its own view as to whether the issue was truly a question needing to be determined by the first court in the earlier litigation. The respondent, Mr Kidd, asserts it will be sufficient if the first court decided resolution of the issue was necessary, a matter to be determined by examining what was in fact decided in the context of the dispute before that court.
In the present case Mr Kidd relies on issue estoppels said to arise from a judgment of the High Court of South Africa.[2] An issue estoppel may arise from the judgment of a foreign court, but in such cases a cautious approach may be required.[3] This case has the unusual feature that Mr Kidd had sued…

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 van Heeren v Kidd

Details

AGLC: van Heeren v Kidd [2016] NZCA 401
Case: [2016] NZCA 401
Decision Date: 19 August 2016 at 11.30 am

CaseChat Overview and Summary

This appeal raises an important question about the approach to be taken in deciding whether the issue determined was in fact an essential part of the reasoning of the judgment said to give rise to the estoppel. The appellant, Mr van Heeren, contends that the second court, before which the estoppel is asserted, must inquire objectively for the purpose of forming its own view as to whether the issue was truly a question needing to be determined by the first court in the earlier litigation. The respondent, Mr Kidd, asserts it will be sufficient if the first court decided resolution of the issue was necessary, a matter to be determined by examining what was in fact decided in the context of the dispute before that court. The Court rejected the appellant's argument. It considered that the partnership and assets findings were steps actually relied on to reach the conclusion the Indemnity must be set aside and it was not necessary to determine whether a different conclusion could have been reached on alternative bases. The Court accepted that it was legitimate for the Judge to decide that the parties were in a partnership and to make findings about the extent of the partnership assets. The Court held that the appeal should be dismissed and that the costs of the appeal should be paid by the appellant.

Orders