Waterhouse v Contractors Bonding Ltd - [2013] NZCA 151

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA542/2012
[2013] NZCA 151

BETWEEN GODFREY WATERHOUSE
First Appellant

AND ROBERT JOHN WATERHOUSE
Second Appellant

AND CONTRACTORS BONDING LIMITED
Respondent

Hearing: 8 April 2013

Court: O’Regan P, Wild and White JJ

Counsel: S Grant for First and Second Appellants
R E Harrison QC for Respondent

Judgment: 14 May 2013 at 2.30 pm

JUDGMENT OF THE COURT

AThe application by the respondent, Contractors Bonding Limited, to strike out the notice of appeal by the second appellant, Robert John Waterhouse, is dismissed.
BThere is no order for costs.
____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Contractors Bonding Ltd (CBL) applies for an order striking out the appeal by Robert John Waterhouse (RJW) against a decision of Potter J in the High Court at Auckland commercial list on 3 August 2012 granting CBL summary judgment in respect of RJW’s claims against it.[1]
[1] Waterhouse v Contractors Bonding Ltd [2012] NZHC 566.
RJW and his father Godfrey Waterhouse (GW), both residents of the State of Georgia in the United States, are plaintiffs in commercial list proceedings against CBL, a New Zealand-based underwriter, operating internationally. They are claiming damages of NZD 4.5 million for alleged wrongdoing arising out of a contract between CBL and Phoenix Brokers Inc (Phoenix), a company registered in Georgia, owned and operated by GW and the employer of RJW. The contract was to underwrite liability insurance for taxi operators (known as livery insurance) in Georgia in respect of policies issued by Phoenix as brokers.
CBL filed an interlocutory application for summary judgment against GW and RJW and, alternatively, for orders striking out their claims on the grounds that the Georgia limitation statute applied, and that any liability was to Phoenix only, neither GW nor RJW having personally suffered any actionable damage. Potter J rejected the limitation ground, the application to strike out the proceeding and the application for summary judgment in respect of the claim by GW, but granted the application for summary judgment in respect of RJW’s claim.[2]
[2] At [33].
Accepting that Potter J’s decision rejecting its applications to strike out the proceeding and to grant summary judgment in respect of GW’s claim is “an interlocutory decision”, CBL has applied to the High Court at Auckland for leave to appeal to this Court as required by s 24G(1) of the Judicature Act 1908. If the High Court refuses leave, CBL will be able to apply to this Court for leave under s 24G(2).
RJW, on the other hand, taking the view that Potter J’s decision to enter summary judgment for CBL in respect of his claim is not “an interlocutory decision”, has simply filed a notice of appeal in this Court against that part of the judgment without first seeking leave to appeal.
CBL’s application to strike out RJW’s appeal to this Court is made on the grounds that Potter J’s grant of summary judgment is “an…

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] NZCA 151
Decision Date: 14 May 2013

CaseChat Overview and Summary

In the case of Waterhouse v Contractors Bonding Ltd, the parties were engaged in a dispute concerning the interpretation of the expression “an interlocutory decision” as found in s 24G of the relevant statute. This section applies to proceedings in the Auckland High Court commercial list and restricts the right of appeal from such decisions. Specifically, the case revolved around whether Potter J’s decision to enter summary judgment for Contractors Bonding Ltd (CBL) in respect of a claim made by RJW against CBL should be classified as an interlocutory decision under the provisions of s 24G(1).

The primary legal issue that the court needed to resolve was whether the decision granting summary judgment by Potter J constituted an interlocutory decision within the meaning of s 24G(1). CBL argued that the decision should be considered interlocutory due to various factors, including the nature of the application and the procedural steps involved. Conversely, the opposing party, represented by Ms Grant, contended that the decision did not fall under the category of an interlocutory decision, arguing against the submissions made by CBL. The court had to determine whether the decision to grant summary judgment should be viewed as an interlocutory order or a final one.

The court, after considering the arguments presented by both parties, concluded that CBL’s submissions did not align with the legal principles established in previous cases. The court found that the distinction between interlocutory and final decisions should be determined based on the nature of the procedural step or stage, rather than the outcome of the application itself. It was held that a decision granting summary judgment, regardless of its form or the outcome, should not be classified as an interlocutory decision. Consequently, the court ruled that Potter J’s decision did not fall under the restrictions imposed by s 24G(1).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The parties agree that the outcome of the strike out application depends on the interpretation of the expression “an interlocutory decision” in s 24G which applies to proceedings in the Auckland High Court commercial list and which 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.(2)If the High Court refuses leave to appeal from any such interlocutory decision, the Court of Appeal may grant that leave on application made to the Court of Appeal within 21 days of the refusal of leave by the High Court. For CBL, Mr Harrison QC submits that Potter J’s decision to enter summary judgment for CBL in respect of RJW’s claim against it was “an interlocutory decision” under s 24G(1) because:(a)it was granted on an interlocutory application for summary judgment under r 12.4(1) and 4(4)(a) of the High Court Rules;(b)the formal Court order is an interlocutory order;(c)to look at the nature and effect of the outcome of the application, rather than the form of the application, would mean that a decision determining a defence application for summary judgment would be categorised as “an interlocutory decision” if the Court declined the application, but not if it granted the application and indeed, as in the present case, part of the same decision would be interlocutory and part not;(d)in other respects under the High Court Rules the distinction drawn between what is interlocutory and what is not (and is therefore “final”) is determined by reference to the nature of the procedural step or stage which brings the matter before the Court for adjudication; (e)the leave restriction imposed by s 24G(1) supports the overall purpose in making provision for commercial lists;[4](f)it is well settled that a judgment granting an application to strike out a claim is an interlocutory (rather than a final) judgment, which equally results in an interlocutory order;[5](g)the same principle and approach has been applied in relation to both successful and unsuccessful applications for summary judgment;[6] and(h)it should be followed in respect of cases on the commercial list.[7][4]Meates v Taylor (1992) 5 PRNZ 524 (CA) at 526; and Clear Communications Ltd v Attorney‑General (1998) 12 PRNZ 287 (CA) at 289.[5]Matthews Corporation Ltd v Edward Lumley & Sons (NZ) Ltd (1994) 7 PRNZ 591 (CA) at 596–598; and Scottwood Charitable Trust v Bank of New Zealand [2002] 2 NZLR 305 (CA) at [19]–[24].[6]Re Fidow [1991] 2 NZLR 602 (HC) at 603–606; and Juno Group Holdings Ltd v Oakley (1994) 7 PRNZ 573 (HC) at 575–576.[7]Opotiki Packaging & Coolstore Ltd v Opotiki Fruitgrowers Co-operative Ltd (in rec) (1998) 12 PRNZ 663 (HC) at 664. For the following reasons, which reflect in large part the submissions of Ms Grant for GW and RJW, we do not accept the submissions for CBL.

Ratio Decidendi

Legal Principle Established

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