MILLBROOK COUNTRY CLUB V S.F.M. INVESTMENTS LTD HC AK CIV-2009-404-2850

MILLBROOK COUNTRY CLUB V S.F.M. INVESTMENTS LTD HC AK CIV-2009-404-2850 16 September 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2009-404-2850BETWEEN MILLBROOK COUNTRY CLUBPlaintiffAND S.F.M. INVESTMENTS LIMITEDFirst DefendantAND GARRY ALBERT MUIRSecond DefendantHearing: On the papersCounsel: C Heaton for the PlaintiffG A Muir for DefendantsJudgment: 16 September 2011JUDGMENT OF ELLIS J[on applications for leave to appeal and for stay]This judgment was delivered by me on 16 September 2011At 12 noon, pursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors: Morrison Kent, PO Box 10035, Wellington 6143Muir Law, PO Box 37508, Auckland[1] I concluded my judgment dated 9 August 2011 by saying:At the hearing before me Mr Muir very responsibly signalled the likelihood of an application for leave to appeal and for a stay in the event that his application for review was unsuccessful. In light of the timetable that remains in play and the imminent hearing date of 25 September, I direct that any such application(s) are to be made within five working days of the date of this judgment and any notice of opposition is to be filed within two working days of that date. Any such application is to be referred to me and (subject to any objection from counsel) I will deal with it on the papers.[2] The defendants duly filed an application for leave to appeal together with a (further) application to vacate the orders made by Associate Judge Faire on 8 July 2011 (effectively seeking an adjournment of the summary judgment hearing scheduled for 27 September). The applications are opposed. None of the parties has objected to my determining them on the papers. Memoranda have been filed.[3] The grounds advanced in support of the first application are:(i) That the interests of justice require that the judgment be appealed to the Court of Appeal;(ii) The judgment should be subject to appeal in that it:A. fails to establish jurisdiction to hear the review;B. determines issues not the subject of the application for review;C. is contrary to established Court of Appeal authority;D. determines issues not determine by the Judge below;E. as otherwise appearing in the memorandum filed in support of this application.[4] First, it can be noted that these grounds do not engage with the well established test governing the grant of leave in cases such as the present: Waller v Hider.1 As the Court of Appeal held in that case the appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some1 Waller v Hider [1998] 1 NZLR 412.private or public interest of sufficient importance to outweigh the cost and delay of the appeal. The requirements of justice are the overriding principle.[5] Although Mr Muir has called in aid the interests of justice, in my view those interests point clearly against the grant of leave here. That is because the simple reality is what Mr Muir seeks is deferral of the 27 September summary judgmenthearing. I assume that is because his and his company's liability has, on the claim for summary judgment, already been determined and there is no basis upon which they can challenge the quantum of the damages now claimed. Similarly, I assume that he has not applied to Court in the ordinary way for an adjournment because there is no basis upon which he would obtain one. The only avenue left open to himis to take "jurisdictional" points in an attempt to assert that and "nullity". Viewed in that light, it is impossible to see how there can be any important public or private interest engaged by the appeal.[6] Nor do I consider that the proposed appeal can be said to raise some question of law that is capable of bona fide and serious argument. Mr Muir seeks, rather, topile "jurisdictional" argument upon "jurisdictional" argument in an attempt toadvance the proposition that decisions that are adverse to him are "nullities". I observe that this is a course that has been unsuccessfully pursued by him in the context of other litigation to which he is a party: Redcliffe Forestry Venture Ltd v Commissioner of Inland Revenue.2[7] In the present case, for example, Mr Muir now seems to be contending that, notwithstanding his own authorship of the review proceedings that were determined by me, this Court had no jurisdiction to entertain them, based on the Court ofAppeal's decision in Radioworks Ltd v Commissioner of Inland Revenue.3 In that case the Court of Appeal held that Courtney J had had no jurisdiction to decline an application for review brought under s 26P(1) of the Judicature Act 1908 because theAssociate Judge had not in fact made an "order or decision" that was reviewableunder that section.2 Redcliffe Forestry Venture Ltd v Commissioner of Inland Revenue [2011] 1 NZLR 336.3 Radioworks Ltd v Commissioner of Inland Revenue [2011] NZCA 129.[8] To the extent questions of estoppel can arise on jurisdictional issues (see the comments of William Young P in Attorney-General v Howard)4 then Mr Muir's own conduct (in applying for review) seems to me to count against him on this issue. But even putting any estoppels to one side I expressly turned my mind to the point that now appears to be relied on by him. At [38] of my judgment I said that:Lastly, and although it was not argued by Millbrook, I would add that there must be some question about whether orders of the sort made by Associate Judge Faire are reviewable at all. By analogy with the case law in relation to rights of appeal under s 66 of the Judicature Act 19085 it seems to me doubtful that timetable directions can properly be said to constitute an "order or decision" in terms of s 26P of that Act. However in light of my conclusions in relation to the other matters above, it is unnecessary for me finally to determine that point.[9] As will be evident from the fact that I heard and determined Mr Muir'sapplication for review on the merits, I had not understood that he was in fact contending that I had no jurisdiction to do so. Had he clearly made that argument, my finding might well have been as intimated in paragraph [38] and the whole application then viewed as an abuse of process. And as Ms Heaton for the plaintiff points out, had I made a firm finding in that regard, there would be no possibility of obtaining leave to appeal.[10] Even putting those matters to one side, however, I am ultimately left in nodoubt that neither of the defendants' applications should be granted. No possibilityof injustice arises because Mr Muir will be free to advance the defendants'jurisdictional arguments in any appeal that follows on from the determination of the substantive summary judgment application which is due for hearing on 27 September 2011. That is likely to be a far more expeditious way of dealing with the issues than holding up the hearing of that application (which, as my earlier judgment makes clear, already has a protracted history) pending the resolution of the appeal in respect of which leave is now sought. As I have said, the course Mr Muir now seeks to pursue would not only be productive of unnecessary delay but, in my view, designed to achieve it.4 Attorney-General v Howard [2011] 1 NZLR 58 (CA).5 Association of Dispensing Opticians of New Zealand Inc v the Opticians Board [2000] 1 NZLR 158(CA).[11] The applications are dismissed accordingly. The hearing on 27 September 2011 is to take place as scheduled.______________________________Rebecca Ellis J