PRESTIGE BUILDING REMOVALS LTD v VOGEL [2023] NZHC 1815

PRESTIGE BUILDING REMOVALS LTD v VOGEL [2023] NZHC 1815 [12 July 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-419-000209[2023] NZHC 1815BETWEEN PRESTIGE BUILDING REMOVALSLIMITEDApplicantAND SHELLEY LYNN VOGEL and BRETVOGELRespondentHearing: On the papersCounsel: R A Weir for ApplicantA C N Fuiava for RespondentJudgment: 12 July 2023JUDGMENT OF ANDREW J[Leave to appeal to Court of Appeal]This judgment was delivered by Justice Andrewon 12 July 2023 at 3.00 pmpursuant to r 11.5 of the High Court Rules 2016Registrar / Deputy RegistrarDate Introduction[1] This is a dispute about a relocation contract for a transportable home owned bythe respondents, the Vogels. At issue is the interpretation of the phrase "proper access"under cl 15 of this contract (i.e. access to the Vogel's site to commence relocation).The relocation involved transporting the Vogel's house across adjacent third-partyprivate land, namely the Maraetai forest. The applicant, Prestige Building RemovalsLtd,1 maintains that "proper access" required the Vogels to obtain permission from theowners of the forest and says they have not done so.[2] In my judgment of 1 March 2023,2 I dismissed an application by Prestige undercl 5(1)(c) of schedule 2 of the Arbitration Act 1996 for leave to appeal the arbitralaward of Mr O'Neill, barrister. Mr O'Neill had awarded damages of $163,012.88 tothe Vogels, together with costs and disbursements of $75,140.64.[3] In seeking leave to appeal Mr O'Neill's award on the grounds of material errorof law, Prestige claimed that Mr O'Neill did not correctly interpret the meaning of"proper access" under cl 15 of the contract. It argued that Mr O'Neill had failed toaddress the critical requirement of permission of owners of the forestry land.[4] Prestige now makes an application under cl 5(5) of schedule 2 of theArbitration Act for leave to appeal my judgment of 1 March 2023 to the Court ofAppeal. The critical issue I must determine is whether the proposed appeal raises aquestion of law capable of bona fide and serious argument in a case of sufficientimportance to outweigh the cost and delay of the further appeal.Factual background[5] I adopt [6]–[12] of my earlier judgment of 1 March 2023.[6] The disputed cl 15 of the relocation contract reads:THAT the purchaser will provide full and proper access to his site and willremove any obstacles, including fences, hedges and trees, to allow thetransportation of the building, and will obtain all necessary consents for accessthrough adjoining properties, and indemnifies the contractor and its agentsagainst any claim whatever arising through the transportation of the buildingthrough the property of others.1 Prestige.2 Prestige Building Removals Ltd v Vogel [2023] NZHC 359.[7] On 4 March 2021, Mrs Vogel emailed Prestige and advised that the relocationof the house required access through the Maraetai forest. She confirmed to Prestigethat she (the Vogels) had approval for that and would manage things at their end.[8] At the arbitration, Mrs Vogel gave evidence that she had obtained permissionfor Prestige to access the forestry road with a truck and house trailer for the removal.This was obtained from Mr Callum Wilson, president of the Pohutakawa Coast BikeClub Incorporated.3 PCBC and Whitford Forest Holding Company Ltd,4 the owner ofthe forest, are parties to the Whitford Forest Access Licence Agreement. Clause 8 ofthis agreement allows PCBC to enter the forest area for mountain biking on roads,tracks and agreed trails.Relevant legal principles[9] The Court of Appeal in Downer Construction (New Zealand) Ltd v SilverfieldDevelopments Ltd,5 set out the criteria for leave under cl 5(5) of schedule 2 of theArbitration Act. It approved of the test established in Cooper v Symes.6 The Courtheld:7(a) The appeal must raise some question of law capable of bona fideand serious argument in a case involving some interest, public orprivate, of sufficient importance to outweigh the cost and delay of thefurther appeal.(b) Upon a second appeal, the Court of Appeal is not engaged in thegeneral correction of error. Its primary function is then to clarify thelaw and determine whether it has been properly construed and appliedby the Court below.(c) Not every alleged error of law is of such importance either generallyor to the parties as to justify further pursuit of litigation that has beentwice considered and ruled upon by a Court.Analysis[10] In the earlier proceeding before me (giving rise to my judgment of 1 March2023), Prestige contended that cl 8 of the forest access licence agreement between3 PCBC.4 Whitford Forest Holding.5 Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355,[2008] 2 NZLR 591.6 Cooper v Symes (2001) 15 PRNZ 166 at [12]; see also Northash v Zeff Farms Ltd [2022] NZCA471.7 Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd, above n 3, at [33].PCBC and Whitford Forest Holding granted limited access to the forest for the purposeof mountain bike riding. Prestige contended that, having regard to cl 8 and its limitedpurpose, the finding of Mr O'Neill that "proper access" under cl 15 of the relocationcontract was granted was a perverse finding.[11] In a 2003 report on the Arbitration Act 1996, the Law Commission expressedthe following view:8We are of the view that in the context of an appeal from an arbitral award itwould be inappropriate to include a perverse finding of fact within the term"error of law".[12] The Law Commission recommended an amendment to the Arbitration Act1996 to expressly exclude perverse findings of fact, or findings based on no evidence,from being an "error of law".[13] The Arbitration Amendment Act 2007 inserted cl 5(10) of schedule 2 into the1996 Act. That provision reads:For the purposes of this clause, question of law –(a) includes an error of law that involves an incorrect interpretation of theapplicable law (whether or not the error appears on the record of thedecision); but(b) does not include any question as to whether –(i) the award or any part of the award was supported by anyevidence or any sufficient or substantial evidence; and(ii) the arbitral tribunal drew the correct factual inferences fromthe relevant primary facts.[14] In my judgment, I found that it was not necessary for me to reach anyconcluded view on whether the 2007 amendment expressly excluded an appeal on thegrounds of a perverse finding of fact. I held: "It seems likely that it does, but I do notdecide the point."9 I further held:[39] I find that there is no arguable case that the decision of Mr O'Neill onthe question of proper access was perverse. He had regard to all the evidence.He did not and was not required to confine his analysis to cl 8 of the forestaccess licence agreement. He reached the conclusion that the Vogels did8 Law Commission Improving the Arbitration Act 1996 (NZLC R83, 2003) at [122].9 Prestige Building Removals Ltd v Vogel, above n 2, at [39].provide proper access and met their obligations under cl 15 of the agreementwith Prestige.[40] There is no merit to the "perverse finding of fact" ground of appeal.[15] The grounds advanced by Prestige in the present application for leave to appealto the Court of Appeal are:(a) There is a bona fide and serious question of law for consideration bythe Court of Appeal, namely whether I erred in law by finding that itwas not necessary for me to reach any concluded view that theArbitration Amendment Act 2007 expressly excludes an appeal on thegrounds of a perverse finding of fact;(b) That the findings of the arbitrator, Mr O'Neill, were perverse in that theVogels were required to provide proper access which, in terms of cl 15of the relocation contract between the parties, was not provided.[16] It may be, as Mr Weir for Prestige submits, that whether the 2007 amendmentto the Arbitration Act excluded perverse findings of fact is a question of law of somegeneral public importance. However, I reject the contention that my failure to addressthat issue raises a live question of law for the Court of Appeal capable of bona fideand serious argument. In my judgment, I concluded that there was no need for thislegal issue to be determined because there was no proper evidential or factual basisfor concluding that the perverse standard had been met.[17] The contention that I erred when rejecting Prestige's claims that Mr O'Neill'sfindings were perverse likewise fails to meet the threshold of a question of law capableof bona fide and serious argument. My conclusion that Mr O'Neill's findings werenot perverse was dependent on a number of factual findings which could not crediblybe said to amount to a perverse finding. As noted above, I held that Mr O'Neill hadregard to all the evidence and was not required to confine his analysis to cl 8 of theforest access licence agreement.[18] The "perverse" threshold (even it does amount to a question of law) is a highone. That is reinforced by the definition of "question of law" in cl 5(10) of schedule2. That definition expressly excludes from "a question of law" any arbitral award thatis not supported by any evidence or any sufficient or substantial evidence. It alsoexcludes from such definition the question of whether the arbitral tribunal drew thecorrect factual inferences from the relevant primary facts.[19] I find that Prestige has failed to establish that its proposed questions of law arecapable of bona fide and serious argument. I also conclude that they are not ofsufficient importance to outweigh the cost and delay of a further appeal. The amountsat issue here are not significant and all issues have been comprehensively argued anddetermined. There is a clear need to bring all matters to a final conclusion.Result[20] The application by Prestige for leave to appeal my decision of 1 March 2023to the Court of Appeal is dismissed.[21] As to costs, I am of the preliminary view that having succeeded therespondents, the Vogels, are entitled to costs and on a 2B basis plus disbursements. Ifcosts cannot be agreed, then the parties are to file memoranda (no more than threepages) within 14 days.[22] Upon receipt of costs submissions (or notification of resolution) I will alsodetermine the outstanding costs issue in relation to my earlier judgment of 1 March2023.__________________________Andrew J