BUTCH PET FOODS LTD v MAC MOTORS LTD [2018] NZHC 198

BUTCH PET FOODS LTD v MAC MOTORS LTD [2018] NZHC 198 [20 February 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-411[2018] NZHC 198BETWEEN BUTCH PET FOODS LTDApplicantAND MAC MOTORS LTDRespondentHearing: (On the papers)Appearances: P T Finnigan for ApplicantM Wilkinson, Director of RespondentJudgment: 20 February 2018JUDGMENT OF BREWER JSolicitors:Romaniuk & Associates (Auckland) for Applicant(Respondent in person)[1] Butch Pet Foods Ltd ("the applicant") has applied for leave to appeal to theCourt of Appeal that part of my Judgment1 rejecting the applicant's primary ground ofappeal to this Court. The notice of interlocutory application sets out the primaryground as:Whether, in order to provide a fair hearing the primary Judge was required to:1. provide adequate/cogent reasons to support the strong adversecredibility findings made against the witnesses, Barton and Wilcox;and2. deal with the evidence of the witness Cress that the driver-abuse,would not cause adequately tightened flywheel bolts to loosen andunwind; and3. grapple with contradictory fact and expert evidence and reason,coherently, why, one set of witnesses, of fact and expertise, should bepreferred to the other.[2] The applicant also seeks leave to cross-appeal against the quantum ofdisbursements I allowed the respondent. I have given leave to the respondent to appealthe quantum (it thinks it should be higher) and the applicant wants the chance to argueit should be lower.[3] The applicant also applies for leave to bring this appeal out of time.2[4] In my Judgment of 14 December 2017, in which I granted Mac Motors Ltdleave to appeal to the Court of Appeal on one ground, I reported the opposition by theapplicant as:3The opposition by Butch Pet Foods is on the basis that the proposed appealdoes not raise any question of law or fact capable of bona fide and seriousargument in a case involving some interest, public or private, of sufficientimportance to outweigh the cost and delay of the further appeal.[5] The applicant's application is barred by the principles behind that argument.The proposed grounds of appeal do not raise any question of law or fact capable ofbona fide and serious argument in a case involving some interest, public or private, ofsufficient importance to outweigh the cost and delay of the further appeal. The1 Butch Pet Foods Ltd v Mac Motors Ltd [2017] NZHC 2473.2 High Court Rules, rr 1.19 and 20.22.3 Butch Pet Foods Ltd v Mac Motors Ltd [2017] NZHC 3133, at [3].applicant's argument is that the first ground will guide further appeals wherecontradictory expert evidence and issues of credibility are involved. I disagree. Theapplicant simply seeks to go again into the evidence and attack the District CourtJudge's analysis of the evidence.[6] The applicant's desire to pursue a further reduction of the award fordisbursements cannot be justified by reference to the principles I have set out above.The question I allowed the respondent to take on appeal is:In assessing the reasonableness of Mac Motors Ltd's expert witness costs,should I have taken into account that it was not represented by counsel?[7] The applicant simply wants to argue that the orthodox calculation should haveresulted in a lower amount.[8] The application is dismissed.________________________________Brewer J