Wood v Glover - [2014] NZHC 738

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000055 [2014] NZHC 738

IN THE MATTER of leave to appeal out of time

BETWEEN JOHN LAING WOOD Appellant

ANDRAYMOND JOHN GLOVER Respondent

Hearing: 1 April 2014

Appearances: M B Meyrick for the Appellant
JRF Anderson for the Respondent

Judgment: 9 April 2014

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on Wednesday 9 April 2014 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:
M B Meyrick, Berman and Burton, Ellerslie, Auckland
JRF Anderson, Barrister, Auckland

WOOD v GLOVER [2014] NZHC 738 [9 April 2014]

[1] Mr Wood wishes to appeal a fully reasoned decision given by Judge Blackie in the Manukau District Court on 4 November 2013, in which the Judge rejected Mr Wood’s claim that Mr Glover had converted a number of motor vehicles in the course of what was essentially a joint venture between Mr Wood/Mr Wood’s company and Mr Murray Sanderson/Mr Sanderson’s company, Sanderson
Investments Ltd.1 Mr Sanderson is an Australian who lives in Brisbane. Neither Mr

Sanderson nor his company was a party to the proceedings in the Court below.

[2] In general terms, joint venture involved the sourcing of prestige European vehicles via Mr Sanderson’s agents in Hong Kong (Mr Poon Qui Him, trading as Him’s Motor Centre) and shipping them to New Zealand. After the vehicles were processed by Customs and any VINZ compliance issues were addressed the cars were marketed for sale. Mr Glover was engaged by the joint venture to handle all these types of requirements in New Zealand.

[3] Mr Wood did not, however, commence his appeal within 20 working days of the Judge’s decision. Instead he filed a pro forma notice (by which I mean a notice that simply averred that the learned Judge’s decision was wrong in fact and law) on
15 January 2014. He did not, however, email a copy of that notice to Mr Glover until 20 January 2014 but the attachments were missing. Proper service was not effected until 7 March 2014.

[4] Mr Glover then filed documents disputing this Court’s jurisdiction to hear the appeal on the grounds that:

(a) Judge Blackie’s decision was not “final” and could not therefore be

appealed; and

(b)In any event the appeal was out of time and no application for special leave had been made.

[5] Mr Wood then filed an application for special leave and an affidavit in support.

1 Wood v Glover DC Manukau CIV-2012-092-003837. 4 November 2013.

[6] The matter was called in the Civil Appeals List on 11 March 2014. My minute of that date records that I directed a further call on 1 April and that I would hear the cross applications (namely the application to dismiss for want of jurisdiction and the application for special leave) at the end of the Civil Appeals List on that day.

[7] On 1 April Mr Meyrick appeared for Mr Wood. He advised that Mr Wood’s…

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 Wood v Glover

Details

AGLC: Wood v Glover [2014] NZHC 738
Case: [2014] NZHC 738
Decision Date: 9 April 2014

CaseChat Overview and Summary

Mr Wood sought to appeal a decision by Judge Blackie in the Manukau District Court, which had rejected his claim that Mr Glover had converted a number of motor vehicles. Mr Wood's claim arose from a joint venture involving the sourcing of vehicles from Hong Kong and marketing them in New Zealand. Mr Glover was engaged to handle the processing and compliance requirements in New Zealand. The District Court found that the vehicles had not been converted by Mr Glover as they remained the property of Sanderson Investments, as stipulated in the heads of agreement signed by Mr Wood.

The appeal was brought out of time and Mr Wood applied for special leave to extend the time. Mr Glover argued that the Court had no jurisdiction to hear the appeal because the District Court decision was not final and no application for special leave had been made. Mr Wood's application for special leave was heard on 1 April 2014.

The Court held that the District Court decision was final as it determined the critical issue of whether Mr Glover had converted the vehicles. The Court found that the delay in filing and serving the appeal, and the reasons for that delay, were relatively neutral factors. However, the merits of the proposed appeal counted overwhelmingly against Mr Wood's position. The Court found that there had been a failure by Mr Wood and his advisors to analyse the legal relationships and obligations between the parties, and that the absence of Mr Sanderson from the proceeding militated against the merits of the proposed appeal. The application under rule 20.4 for special leave to extend the time for bringing the appeal was declined.

No orders were made as to costs.

Orders