White v New Zealand Stock Exchange

[2002] NZCA 50

IN THE COURT OF APPEAL OF NEW ZEALAND CA61/01

BETWEEN	JOHN ANDREW WHITE
Appellant

AND	THE NEW ZEALAND STOCK EXCHANGE
Respondent

Hearing:	11 March 2002
Coram:	Gault J Blanchard J McGrath J
Appearances:	P J Dale for Appellant J E Hodder for Respondent
Judgment:	11 March 2002

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

1. This is an application by the New Zealand Stock Exchange (the Exchange) for conditional leave to appeal to Her Majesty in Council from a judgment of this Court delivered on 29 October 2001 reversing a High Court judgment which granted Mr White judicial review and declared invalid decisions of the Board of the Exchange (the Board) and the Membership Appeal Committee of the Exchange (the Committee).  The Board had declined Mr White’s application for individual associate membership of the Exchange and the Committee had dismissed Mr White’s appeal against that decision.  The Committee had also ordered Mr White to pay $30,001.95 towards the Exchange’s costs and this Court also declared that order to be invalid and quashed it.

2. The application is primarily based on r2(a) of the 1910 order.  The costs award had been the subject of a counterclaim in the High Court, which ordered that it be adjourned and dealt with it separately once the judicial review application was disposed of.  After Mr White brought his appeal to this Court the parties agreed that the Exchange should have judgment on the counterclaim and the High Court entered judgment on it in the sum of $30,001.95 plus interest.  The Exchange now says that the effect of this Court’s judgment quashing the orders made in the High Court is that the Exchange’s judgment debt can no longer be enforced.  As it was for a sum exceeding $5,000, the proposed appeal is said to involve, in terms of r2(a), directly or indirectly, a claim or question to or respecting property or a civil right of a value of $5,000 or upwards. 

3. In Elders Pastoral Ltd v Bank of New Zealand [1990] 3 NZLR 129 at 134 the Privy Council itself has said that the effect of an award of costs must be ignored in calculating whether an amount in dispute exceeds $5,000 for the purposes of r2(a). That remark was related to court costs in the proceeding in which the leave application was made. In other words, they were costs awarded in respect of the proceeding in the High Court and this Court. In the present case the costs were awarded by the Committee in respect of the appeal to it and were not related to the present court proceeding. Indeed, the award preceded its commencement and was a subject matter of the present litigation.

4. Nevertheless, the sum relied upon is of the same character as an award of court costs, namely a contribution ordered to be paid towards the legal expenses of a party to a legal dispute.  We therefore consider that, like court costs, they should not for the purposes of r2(a) be counted in determining whether there is any matter in dispute of the requisite value.  We can see no sound policy reasons for drawing any distinction.  Mr Hodder argued that the costs had given rise to a judgment debt, but so would an award of court costs.  In our view this dispute cannot therefore be said to give rise to a right of appeal as of right.

5. Belatedly, the applicant also relied on r2(b) and in particular on the “or otherwise” limb.  It was said that this Court’s decision had impacted adversely on the level of informality which ordinarily would be associated with membership decisions and was reached on the basis of the Committee’s choice of “gently indirect” language.  The appellate decision was on a point not taken or considered in the High Court.  However, there is plainly no point of great general or public importance being raised and no demonstration of real importance to the Exchange going beyond the facts of the particular case.  All that has been decided is that Mr White’s application was not properly considered and that the deficiency was not cured by the appeal process.

6. The application for conditional leave is accordingly dismissed with costs to the appellant, Mr White, of $3,000 together with his reasonable disbursements, including travel and accommodation expenses of counsel to be fixed if necessary by the Registrar.

Solicitors:

Grove Darlow and Partners, Auckland for Appellant

Chapman Tripp Sheffield Young, Wellington for Respondent