Waterhouse v Contractors Bonding Limited - [2013] NZHC 2100

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
COMMERCIAL LIST

CIV-2010-404-3074 [2013] NZHC 2100

BETWEEN GODFREY WATERHOUSE Plaintiff

ANDCONTRACTORS BONDING LIMITED Defendant

Hearing: 26 July 2013

Counsel: S Grant for plaintiff
R E Harrison QC for defendant

Judgment: 26 July 2013

Reasons: 19 August 2013

JUDGMENT OF WINKELMANN J

This reasons for judgment was delivered by me on 19 August 2013 at 2.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

Solicitors
Harmos Horton Lusk, Auckland
Fortune Manning, Auckland

Counsel:
R E Harrison QC, Auckland

WATERHOUSE v CONTRACTORS BONDING LIMITED [2013] NZHC 2100 [26 July 2013]

[1] The defendant, Contractors Bonding Ltd (Contractors Bonding), applied for leave to appeal a judgment of Potter J delivered on 3 August 2012, dismissing applications by Contractors Bonding for summary judgment or to strike out Mr Godfrey Waterhouse’s claim.

[2] In her decision, Potter J granted summary judgment in favour of Contractors Bonding in respect of claims brought by the then second plaintiff, Mr Robert Waterhouse, but dismissed an application to strike out the claims. Mr Robert Waterhouse has appealed the making of summary judgment against him. Contractors Bonding also wishes to cross-appeal the refusal of its application to strike out Mr Robert Waterhouse’s claim, and in any case wishes to support the summary judgment against Mr Robert Waterhouse on other grounds.

[3] This is a proceeding entered on the Commercial List. Contractors Bonding required leave for both its appeal in respect of Mr Godfrey Waterhouse and its cross- appeal in respect of Mr Robert Waterhouse. Section 24G of the Judicature Act 1908 provides:

24G Restriction of right of appeal from interlocutory decisions

(1) No appeal shall lie from an interlocutory decision of the High Court in respect of any proceeding entered on a commercial list unless leave to appeal to the Court of Appeal is given by the High Court on application made within 7 days of the decision being given or within such further time as the High Court may allow.

[4] The Court of Appeal has already held that Mr Robert Waterhouse does not require leave to appeal because the judgment disposing of his claim was not an interlocutory decision.

[5] Both Mr Godfrey and Mr Robert Waterhouse, opposed the grant of leave to Contractors Bonding. I heard argument on 26 July 2013 and, at the conclusion of the hearing, I granted Contractors Bonding leave to appeal. I now give my reasons for that grant of leave.

Principles

[6] The relevant principles for the grant of leave are well established, and are as set out by the Court of Appeal in Meates v Taylor:[1]

A party seeking this Court's leave to appeal under s 24G, leave having been refused by the High Court, has a high threshold to cross. The Commercial List is designed to secure the expeditious completion of the interlocutory stages of a case, and so minimise delays in its ultimate disposition. The ready availability of a right of appeal can frustrate…

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.

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Details

Case: [2013] NZHC 2100
Decision Date: 19 August 2013

CaseChat Overview and Summary

Contractors Bonding Ltd applied for leave to appeal a judgment dismissing its applications for summary judgment and to strike out Godfrey Waterhouse's claims. Robert Waterhouse, the second plaintiff, had already appealed the making of summary judgment against him. Contractors Bonding also wished to cross-appeal the refusal of its application to strike out Robert Waterhouse's claim, and to support the summary judgment against him on other grounds. Winkelmann J heard argument on 26 July 2013 and granted Contractors Bonding leave to appeal. The issues on appeal were whether the Judge erred in her approach to determining the proper law applicable to the limitation defence, and whether the Judge correctly rejected Contractors Bonding's argument that Robert Waterhouse had no standing to bring the claims. The Waterhouses opposed the grant of leave to Contractors Bonding. Winkelmann J concluded that the appeal raised an issue of considerable significance for Contractors Bonding, and that there was a risk of injustice if leave were not granted. The additional delay caused by the appeal would not be significant. Winkelmann J therefore granted leave to appeal.

Orders