Wyllie v Firmin - [2023] NZHC 1489

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2021-463-46

CIV-2021-463-56 [2023] NZHC 1489

BETWEEN
CORNELIA WYLLIE and ABIGAIL JUTTA LATHAM

Plaintiffs

AND

TIMOTHY RICHARD FIRMIN

Defendant

Hearing: 11 May 2023

Appearances:

Howard Thompson for the Plaintiffs Stephen Iorns for the Defendant

Judgment:

16 June 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

Application for leave to appeal, further and better particulars, and security for costs

This judgment was delivered by me on 16 June 2023 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
McMahon Butterworth Thompson (Howard Thompson), Auckland, for the Plaintiffs

Copy for:
Stephen Iorns, Barrister, Upper Hutt, for the Defendant.

WYLLIE and LATHAM v FIRMIN [2023] NZHC 1489 [16 June 2023]

TABLE OF CONTENTS

Paragraph

Introduction [1]

Background [2]

Cornelia and Abigail’s application on notice for leave to appeal [6]

Timothy’s opposition [8]

Cornelia and Abigail’s application for further and better
particulars and security for costs [9]

Affidavit of Abigail Jutta Latham dated 12 September 2022 [11]

Timothy’s opposition [17]

Affidavit of Timothy Richard Firmin dated 30 September 2022 [18]

Legal principles [22]

Leave to appeal [22]

Further and better particulars [24]

Security for costs [28]

Analysis [36]

Should Cornelia and Abigail be granted leave to appeal the Recall Judgment? [38]

The natural justice argument [39]

The jurisdiction argument [41]

Prejudice and the interests of justice [42]

Timothy’s submissions [45]

Conclusion in relation to granting leave to appeal [48]

Should Timothy be required to provide further and better particulars in relation to the breach of contract claim in his amended statement of claim dated 18 July 2022? [50]

Conclusion in relation to further particulars [55]

Should Timothy be ordered to provide security for costs? [56]

Conclusion in relation to security for costs [59]

Result [61]

Orders [62]

Introduction

[1] This judgment concerns applications in two related proceedings, CIV-2021- 463-46 (the 46 proceeding) and CIV-2021-463-56 (the 56 proceeding). In the 46 proceeding, Cornelia Wyllie (Cornelia) and Abigail Latham (Abigail),1 the plaintiffs, are seeking leave to appeal a 12 August 2022 judgment of Associate Judge Sussock in relation to recall and costs (the Recall Judgment).2 In the 56 proceedings, Cornelia and Abigail, the defendants, are seeking further and better particulars of the amended statement of claim and security for costs. The defendant in the 46 proceeding and plaintiff in the 56 proceeding is Timothy Firmin (Timothy).

Background

[2] These proceedings relate to ongoing disputes arising out of the estate of Anthony Lawrence Firmin (Anthony), the most substantial asset of which is a Whakatāne Orchard and winemaking business (the Orchard) on which Anthony and his wife resided until their deaths.

[3] Initially, Cornelia and Abigail, two of Anthony’s daughters, were appointed executors of his estate. Timothy, one of Anthony’s sons, had lodged a caveat over the Orchard property, which Cornelia and Abigail sought to lapse and to obtain orders for vacant possession,…

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: [2023] NZHC 1489
Decision Date: 16 June 2023

CaseChat Overview and Summary

The case of Wyllie v Firmin [2023] NZHC 1489 involves Cornelia Wyllie and Abigail Latham, the plaintiffs, who are seeking leave to appeal a judgment in relation to recall and costs (the Recall Judgment) made by Associate Judge Sussock. The defendant, Timothy Firmin, opposes the application on various grounds, including the high threshold for granting leave to appeal, the lack of sufficient private and public interest, and the mootness of the appeal. Additionally, the plaintiffs seek further and better particulars of Timothy's amended statement of claim and security for costs, which Timothy also opposes. The court analyses the legal principles of leave to appeal, further and better particulars, and security for costs before determining the applications.

The court concludes that Cornelia and Abigail's application for leave to appeal the Recall Judgment should be declined. The reasons for this decision include the arguable nature of the natural justice issue, the mootness of the appeal due to the current executor's decision not to challenge the court's decision, and the lack of exceptional circumstances warranting leave to appeal. The application for further and better particulars is also declined as the amended statement of claim provides sufficient description of the case to be replied to. Finally, the application for security for costs is dismissed as Cornelia and Abigail have not established sufficient reason to doubt Timothy's ability to meet an adverse costs award.

As a result, the court makes the following orders: (a) Cornelia and Abigail's application for leave to appeal the Recall Judgment is dismissed; (b) Cornelia and Abigail's application for further and better particulars of Timothy's amended statement of claim is dismissed; and (c) Cornelia and Abigail's application for security for costs against Timothy is dismissed.

Orders